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Publications of the 
Carnegie Endowment for International Peace 
Division of International Law- 
Washington 



a J ^i> 



THE UNITED STATES OF AMERICA: 

A STUDY IN INTERNATIONAL 

ORGANIZATION 



By the Author of and Uniform with This 
Study in International Organization: 



Judicial Settlement of Controversies Between 
States of the American Union 

Ca^es decided in the Supreme Co-wrt of the United States 
{2 vols., 4to) 

'An Analysis of Cases decided in the Supreme Court of the United States 
(i vol., 4to) 



I can not refrain from asking your Lordships to consider how the subject has been viewed 
by our brethren in the United States of America. They carried the common law of England 
along with them, and jurisprudence is the department of human knowledge to which, as 
pointed out by Burke, they have chiefly devoted themselves, and in which they have chiefly 
excelled. (Lord Campbell in Regina v. Millis, 10 Clark & Finnelly, 777, decided in 1844.) 

Sitting, as it were, as an international, as well as a domestic tribunal, we apply Fed- 
eral law, state law, and international law, as the exigencies of the particular case may 
demand. {Chief Justice Fuller in Kansas v. Colorado, 185 United States, 125, I46-'I47, de- 
cided in 1902.) 

Confederations have existed in other countries than America; republics have been seen 
elsewhere than upon the shores of the New World; the representative system of government 
has been adopted in several states of Europe; but I am not aware that any nation of the 
globe has hitherto constituted a judicial power in the same manner as the Americans. {Alexis 
de Tocqueville, De la Democratie en Amerique, 2 Vols., 1835, Vol. I, p. 138.) 

The Supreme Court of the United States, which is the American Federal institution next 
claiming our attention, is not only a most interesting but a virtually unique creation of the 
founders of the Constitution. . . . The success of this experiment has blinded men to its 
novelty. There is no exact precedent for it, either in the ancient or in the modern world. 
(Sir Henry Sumner Maine, Popular Government, 1886, pp. 217-218.) 

American experience has made it an axiom in political science that no written constitution 
of government can hope to stand without a paramount and independent tribunal to deter- 
mine its construction and to enforce its precepts in the last resort. This is the great and 
foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme 
Court of the United States. {Edward John Phelps, The United States Supreme Court and 
the Sovereignty of the People, 1890, Orations and Essays, 1901, pp. 58-59.) 

The extraordinary scope of judicial power in this country has accustomed us to see 
the operations of government and questions arising between sovereign states submitted to 
judges who apply the test of conformity to established principles and rules of conduct 
embodied in our constitutions. 

It seems natural and proper to us that the conduct of government affecting substantial 
rights, and not depending upon questions of policy, should be passed upon by the courts 
when occasion arises. It is easy, therefore, for Americans to grasp the idea that the same 
method of settlement should be applied to questions growing out of the conduct of nations 
and not involving questions of policy. (Elihu Root, Judicial Settlement of International Dis- 
putes, 1908, Addresses on International Subjects, 1916, pp. 15^-2.) 



THE UNITED STATES OF AMERICA 

A STUDY IN INTERNATIONAL 

ORGANIZATION 



JAMES BROWN SCOTT, A.M., J.U.D., LL.D. 

Technical Delegate of the United States to the Second Hague Peace 

Conference, 1907; Technical Delegate of the United States 

to the Peace Conference at Paris, 1919. 



"I send you enclos'd the propos'd new Federal Constitution for these 
States. I was engag'd 4 Months of the last Summer in the Convention 
that form'd it. It is now sent by Congress to the several States for their 
Confirmation. If it succeeds, I do not see why you might not in Europe 
carry the Project of good Henry the 4th into Execution, by forming a 
Federal Union and One Grand Republick of all its different States & 
Kingdoms ; by means of a like Convention ; for we had many Interests to 
reconcile." Benjamin Franklin to Mr. Grand. October 22. 1787. — Docu- 
mentary History of the Constitution of the United States of America, Vol. 
IV, 1905, pp. 341-2. 



NEW YORK 

OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH: 35 WEST 32nd STREET 

London, Toronto, Melbourne and Bombay 

1920 



•h^ 



'"i^ 



COPYRIGHT 1920 

BY THB 

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACH 
Washington, R. C 



tQStltutloir 
NOV 2'.. 1020 



TO 

ROBERT BACON 

IN AFFECTIONATE ADMIRATION 



PREFACE 

The United States of America constitute a union of States, " a more 
perfect Union," to use the language of the preamble to the Constitution, than 
that under the Articles of Confederation which the Constitution was devised 
to supplant. On July 4, 1776, the thirteen British colonies lying between the 
Gulf of Mexico and Canada, to the east of the Mississippi, abjured allegiance 
to the British Crown and solemnly published and declared themselves to be 
" Free and Independent States " possessing, as the Declaration of Independ- 
ence stated, " full power to levy War, conclude Peace, contract Alliances, es- 
tablish Commerce, and to do all other Acts and Things- which Independent 
States may of right do." Availing themselves of their right to contract alli- 
ances, they entered into " a firm league of friendship with each other, for their 
common defence, the security of their liberties, and their mutual and general 
welfare, binding themselves to assist each other, against all force offered to. or 
attacks made upon them, or any of them, on account of religion, sovereignty, 
trade, or any other pretence whatever." " Stiling " this confederation " The 
United States of America," and declaring in explicit terms that " each State 
retains its sovereignty, freedom and independence, and every power, jurisdic- 
tion and right, which is not by this confederation expressly delegated to the 
United States, in Congress assembled," the Articles of Confederation creating 
this union of the States were approved by their delegates in Congress Novem- 
ber 15, 1777, and ratified by the last of the thirteen States on March 1, 1781. 

The firm league of friendship failing of the purposes for which it was cre- 
ated by the delegates of the States in Congress assembled and ratified by the 
States themselves, the Congress on February 21, 1787, resolved it to be expe- 
dient that " on the second Monday in May next, a Convention of Delegates, 
who shall have been appointed by the several States, be held at Philadelphia, for 
the sole and express purpose of revising the Articles of Confederation, and re- 
porting to Congress and the several Legislatures, such alterations and provi- 
sions therein, as shall, when agreed to in Congress, and confirmed by the States, 
render the federal Constittition adequate to the exigencies of Government, and 
the preservation of the Union." In pursuance of this resolution the delegates 
of twelve of the States met in convention in the month of May and adjourned 
on September 17, 1787, having drafted a constitution for a more perfect Union 
of the United States which, ratified by the thirteen original States in the course 
of the ensuing three years, today controls the conduct of forty-eight States and 



which in practice as well as in theory has proved adequate to the " exigencies 
of government and the preservation of the Union." 

In the belief that the experience of the American States proclaimed to be 
free and independent in their Declaration of Independence, each retaining " its 
sovereignty, freedom and independence " under the Articles of Confederation, 
would be of value in any attempt to strengthen that larger union of States 
which we call the Society of Nations, the undersigned has ventured to treat 
within the compass of a volume some of the international problems met and 
solved by the framers of a more perfect Union under the caption of " The 
United States of America: A Study in International Organization." 

James Brown Scott. 
Washington, D. C, 
November ii, ipi8. 



PosTSCRiPTUM, May ii, 1920. — Absence from the country and difficulties 
in printing have delayed the appearance of the present volume. The text, 
however, speaks from Armistice Day, 19 18. 

Two additions of a later date have been made in the extracts prefixed to 
chapters: the first is the text of the settlement of the controversy between 
Virginia and West Virginia (Chapter XIII) ; the second is Mr. Root's defini- 
tion of a justiciable question (Chapter XX). The text of the Eighteenth 
Amendment to the Constitution of the United States as printed in the Appendix 
has also been added. 

I have left untouched the dedication to my beloved friend, Robert Bacon, 
whose noble Hfe ended on May 29, 1919.— J. B. S. 



TABLE OF CONTENTS 

CHAPTER I 
Rise of the Idea of Union 

PAGE 

The Mayflower Compact 3 

Early plans of union 6 

New England Confederation 6 

William Penn's " Scheam " 9 

Benjamin Franklin's plan 11 

The two views — imperial and colonial 15 

Foresight IS 

Dr. Franklin's second plan 16 

CHAPTER II 

Independence Declared 

The fundamental right 22 

Colonial view 22 

Imperial view 22 

A Continental Congress 23 

Declaration and resolves 24 

An association 26 

Another declaration and a petition 27 

The notion of independence 29 

The final step 29 

The Declaration signed and proclaimed 30 

Its political philosophy 31 

Monroe's conception of the results 33 

A new body politic 34 

Our first and only ally 34 

Origin of the doctrines 35 

CHAPTER III 

A Confederation of Sovereign States 

Mr. Dickinson's plan 40 

A United States Congress 40 

Large and small States 41 

The two forms of the Articles 41 

Nature of the Union 42 

Powers renounced 42 

Powers of Congress 43 

Peace and war 43 

Congress with appellate jurisdiction 44 

Suggestion of a judiciary 45 

Defects 45 



xii TABLE OF CONTENTS 

PAGE 

Excellences - 46 

International significance 47 

James Madison's summary of the weakness 47 

Personal interests 52 

Sovereignty 52 

Mr. Madison's view of public ofi&cers 53 

Dissatisfaction 53 

Four proposals that failed 53 

Economic troubles . 54 

Coercion of States 55 

Private initiative 55 

Convention at Annapolis 56 

Another convention proposed 56 

Congressional approval 57 

Union of sovereign States 58 

CHAPTER IV 

Early Backgrounds of the American Constitution: The Trading Companies 

Colonial charters 64 

Genesis of authority of Supreme Court in questions of constitutionality 65 

Two kinds of charters 66 

Corporations 66 

By-laws 67 

Development of trading companies 68 

Spread to America 70 

A second charter 71 

A third charter 72 

Court and assembly 72 

Great and general courts 73 

A representative assembly 74 

A forecast of American liberty 74 

Ratification required 75 

Two houses 76 

Distinction between North and South 11 

The Plymouth Company 78 

Growth of representative institutions 82 

Virginia and Massachusetts Colonies compared 83 

New instruments of government reverted to charters 84 

CHAPTER V 

Further Colonial Precedents 

"Once an Englishman always an Englishman" 90 

Relation of English law to Colonies 90 

Rights of conquest v. rights of discovery 91 

Blackstone's interpretation 91 

Rights of discovery the true basis 92 

Blankard v. Galdy 92 

Common law of England followed colonists 93 

Colonial statutes 97 



TABLE OF CONTENTS XIU 

PAGE 

Conflict of interests : 99 

Prerogatives of the Crown 99 

Lords Commissioners of Trade and Plantations 99 

Committee for Hearing Appeals 100 

Three kinds of appeals from Colonial courts 100 

Precedent for the power of the Supreme Court over Legislatures 101 

Suit of a citizen v. a State 102 

Holden and Green petition 102 

Further judicial precedents 108 

Boundary dispute between New York and New Jersey 109 

From negotiation to judicial procedure 109 

Debt to litigious Rhode Island 118 

Justice to the small State 118 

Legal controversies over Colonial laws 119 

Another precedent for granting power of Supreme Court to declare legislative acts un- 
constitutional 121 

Penn v. Lord Baltimore 123 

A political dispute may become justiciable 125 

CHAPTER VI 

Establishment of State Constitutions 

Impending revolution 129 

Desire to prevent anarchy 129 

Recommendation of Congress 130 

American political background in 1787 131 

Influence of charters 131 

The three branches of government 132 

Sovereignty vested in the people 133 

A social and a political compact 134 

Compact a fundamental law 135 

Revenue bills 136 

Governor's signature 136 

Legislative powers 137 

Executive powers 138 

Judicial powers 138 

Source of law 139 

CHAPTER VII 

The Federal Convention : An In'teknational Conference 

Demands of commerce and navigation 145 

Way, 1787 147 

Large and small States 148 

Organization of the Federal Convention 148 

An international conference 149 

Instructions to delegates 150 

Committee on rules and orders 153 

International aspects of the Convention 155 

Opening of the Convention 156 

Mr. Randolph's fifteen resolutions 158 

The four groups 159 



Xiv TABLE OF CONTENTS 

1 PAGE 

Change of purpose 160 

A union of free States 161 

The word " national " 162 

Other "plans" 163 

National v. federal government 164 

Coercion of States 165 

Enumeration of general powers 165 

International law in the Constitution 167 

Government of laws and not of men 168 

Seat of government 168 

Government of limited powers 168 

CHAPTER VIII 

Creation of the Federal Legislature 

The spirit of compromise 172 

The two branches of the legislature 172 

Questions of representation 173 

Large and small States . . . 174 

Equality of States 175 

The New Jersey plan 177 

The Connecticut proposal ... 179 

Diversity of views 181 

Victory of the smaller States 185 

The first great compromise 187 

The second compromise 187 

Grant of legislative power 190 

CHAPTER IX 

Creation of the Executive 

A single executive 195 

Term of office 195 

Electoral system 196 

President's oath of office 197 

His great powers 197 

Treaties 197 

A check upon the legislature 200 

Executive and judicial vetoes 202 

Laws operate on individuals 202 

The use of force against a State 203 

CHAPTER X 

The First Permanent Tribunal of the States 

Voluntary self-denials, including disarmament 210 

Diplomatic and military settlements 210 

Another kind of settlement 211 

Courts of the Confederated States 211 

International questions 212 

International imphcations of the Confederate judiciary 212 



TABLE OF CONTENTS XV 

PAGE 

Lessons of the State courts 213 

Trial of piracies and felonies 214 

The first federal tribunal 215 

First case of appeal 218 

Congressional Committee on Appeals 218 

The case of The Active 220 

Congressional resolutions — the relation of States 221 

CHAPTER XI 

Temporary Judicial Commissions 

Nature of the commissions 229 

Influence of Privy Council 230 

Pennsylvania v. Connecticut 231 

Two other cases 234 

Significance of the temporary tribunals 238 

Other appeals to Congress 238 

Dispute involving the existence of a State 238 

Pennsylvania v. Virginia 241 

Congress refuses to appoint a court 242 

CHAPTER XII 
Creation of the Supreme Court 

Necessity for a common judiciary 247 

Problem of sovereignty 248 

Differences of opinion 249 

The two plans 249 

The Virginian plan 250 

The New Jersey plan 256 

Question of appointment of judges 257 

Committee of Detail 260 

Draft proposals 261 

CHAPTER XIII 

Prototype of a Court of International Justice 

Questions arising under treaties 268 

How political questions become judicial 270 

Arbitration considered 270 

Original and appellate jurisdiction 272 

Impeachment 272 

Powers of the Court 274 

The supreme law of the land 276 

The question of sanction 279 

Coercion of law v. coercion of force 279 

CHAPTER XIV 
The Admission of New States 

The Northwest Ordinance 286 

Compact between people of States and Northwestern Territory 288 

Attitude of large States 291 



Xvi TABLE OF CONTENTS 

PAGE 

Virginia relinquishes claim 293 

New States on equality with old 294 

Government of the territories 295 

CHAPTER XV 

Amendments and Ratification 

Provisions for amendment 299 

Representation of small States not subject to amendment 300 

Methods of amendment 300 

A system of double constitutions 302 

The power to amend 304 

Ratification 305 

Discussion of the mode of ratification 305 

Sovereign people 308 

The spirit of the ratifications 309 

Difficulties of ratification 312 

Contest in New York 314 

The Federalist 315 

CHAPTER XVI 

Government Set Up: Amendments 

Per interim 321 

The new Government begun 322 

Amendments moved 323 

Demand for a Bill of Rights 324 

Relation of States to the Union 325 

Amendments before the Senate 326 

Powers not delegated are reserved to the States 328 

Value of the amendments 330 

State con%-entions 331 

The first ten amendments 331 

Difficulties overcome 332 

The sovereignty of the States . 333 

The division of sovereign powers 334 

CHAPTER XVII 

The Nature of Judicial Power 

The influence of Montesquieu 341 

Limitation of powers 342 

Congress defines extent but not nature of the Court's power 342 

Judicial power defined by Court itself 343 

Influence of English common law 343 

English cases on the judicial power 344 

An American case 349 

Court can pass on constitutionality of a legislative act 349 

Extra-judicial duties 350 

Powers of Court strictly judicial 353 



TABLE OF CONTENTS XVU 

PAGE 

Further distinction between judicial and other powers 354 

Appellate jurisdiction 357 

Original jurisdiction 358 

The Court may compel individuals but not States to appear 359 

Sovereignty of States protected 359 

Separation of powers 360 

Finality of the Court's decree 360 

Court's relation to the Government and to the States 369 

CHAPTER XVIII 

Powers of the Supreme Court 

Determination of constitutionality 374 

Powers purely judicial 375 

Political contrasted with judicial powers 376 

Judicial power as to treaties 378 

President's rights under international law 382 

CHAPTER XIX 

Extent and Exercise of Judicial Power 

The question of extent 398 

Court defined 400 

The word " supreme " 400 

Finality 400 

Jurisdiction 400 

Determination of jurisdiction 401 

"Judiciary Act" 402 

" Nature and extent " determined 405 

The liability of States 410 

How cases may arise in law and equity 412 

Is judicial power concurrent or exclusive? 413 

Confusion over political v. judicial questions 418 

How political questions become judicial 420 

Application to Society of Nations 424 

CHAPTER XX 

Case — Controversy — Suit 

Supreme Court functions in cases only 427 

"Case" defined 427 

"Suit" defined 428 

Cases and controversies 429 

International "case" 431 

CHAPTER XXI 

Judicial Powers and Their Relation to Law and Equity, to Admiralty, Maritime 
AND International Law 

Definition of " law " and " equity " 438 

Influence of English terminology 438 



XVlll TABLE OF CONTENTS 

PAGE 

Blackstone and Vattel 439 

International law the common law of nations 439 

Law and equity 440 

Common law limited to civil cases 441 

Common law applicable in cases covered by special legislative act 442 

Interpretation of terms 442 

Admiralty and maritime jurisdiction included 447 

An International Court of Prize 447 

CHAPTER XXII 

Immunity of States and Nations itrom Suit 

Suits against States 453 

Coercion of States 453 

Judicial power over States 453 

Consent to be sued 454 

Sovereignty not always an exemption 456 

Suit without consent inconsistent with sovereignty 457 

Waiving of sovereignty 457 

A plaintiff sovereign relinquishes a degree of sovereignty 462 

The sovereign becomes subordinate to law 464 

Further renunciation of immunity from suit by a sovereign power 464 

A State may sue a State 465 

CHAPTER XXIII 

A More Perfect Society of Nations 

The great problem 467 

A possible solution 468 

APPENDIX 
A. Plans of Union for the Colonies and the States of North America 

I. The New England Confederation of 1643 471 

II. William Penn's plan for a union of the Colonies, February 8, 1698 476 

III. Benjamin Franklin's plan for a union of the several Colonies adopted at Albany, 

July 10, 1754 477 

IV. Benjamin Franklin's Sketch of Articles of Confederation read before Congress, 

June 21, 1775 488 

V. The Declaration of Independence, July 4, 1776 492 

VI. Articles of Confederation adopted by Congress, November 15, 1777, ratified by 

the last of the thirteen States, March 1, 1781 494 

VII. The Constitution of the United States adopted September 17, 1787, in effect from 

and after March 4, 1789 502 

B. An Ordinance for the Government of the Territory of the United 

States Northwest of the River Ohio 514 

C. Documents from Which the Constitution was Evolved 

I. Text of Mr. Randolph's Resolutions, presented to the Convention May 29, 1787 . 520 
II. Outline of the Pinckney Plan presented to the Convention May 29, 1787 . . .522 



TABLE OF CONTENTS XIX 

PAGE 

III. Report of the Committee of the Whole on Mr. Randolph's propositions, June 13, 

1787 524 

IV. Text of the New Jersey Plan, moved by Mr. Patterson June 15, 1787 . . . .525 
V. Alexander Hamilton's sketch of a Government for the United States, presented 

June 18, 1787 527 

VI. Mr. Randolph's Resolutions as revised and enlarged by the Convention and re- 
ferred July 26, 1787, to the Committee of Detail 529 

VII. Report of the Committee of Detail, August 6, 1787 532 

VIII. Proceedings of Convention referred to the Committee of Style and Arrange- 
ment 541 

IX. The Constitution as reported by the Committee on Style, September 12, 1787, 

and as signed, September 17, 1787 552 

X. Letter transmitting the Constitution to Congress, September 17, 1787 .... 570 
XL Resolution of the Convention, September 17, 1787, that Congress transmit the 

Constitution to the States for ratification 571 

D. Amendments to the Constitution 

I. The first ten amendments to the Constitution in lieu of a Bill of Rights . . . 572 
II. Subsequent amendments to the Constitution 573 

Index 577 



THE UNITED STATES OF AMERICA: A STUDY 
IN INTERNATIONAL ORGANIZATION 



I. RISE OF THE IDEA OF UNION 

A prima descendit origine mundi 
Causarum series. (Lucan, Pharsalia, Book VI.) 

The appreciation of a great and vital want will account for the origin of the idea of 
a common union. A study of its embodiment reveals the feature of growth. It is so 
original and peculiar, that it may be termed American. (Richard Frothingham, The Rise 
of The Republic of the United States, 1872, p. 28.) 

Often, too, an institution may appear to be the result of direct imitation, when in fact 
it may be the product of a common race instinct, as in the case of the representative 
system reproducing itself in all the branches of the Teutonic race. . . . The law of historical 
continuity, or political inheritance, is not inconsistent with the law of historical variation, 
or political originality. In fact, the greater the accumulations of past experiences, the 
greater will be the capacity to solve by original methods the problems presented by new 
experiences. {William C. Morey, The First State Constitutions, 1893, Annals of the 
American Academy of Political and Social Science, Vol. IV. part I, p. 203.) 

Mr. Gladstone recently pronounced it the most wonderful work ever struck off at a given 
time by the brain and purpose of man. 

John Stuart Mill said, in his essay on De Tocqueville's " Democracy in America," that 
"the whole edifice was constructed, within the memory of man, upon abstract principles." 

If we are to understand these expressions as meaning that the Constitution sprang into 
being, like Athene from the brain of Zeus, or that it was the work of doctrinaires en- 
deavoring to found an ideal republic, it would be easy to show their falsity. The Con- 
stitution " has its roots deep in the soil of the past." No one generation, whatever its 
experience, could have invented such a system. It is a development, under a new environ- 
ment, of old forms of government. Everything in it that was new was a " conservative 
innovation." {W. T. Brantly, Of the Influence of European Speculation in the Formation 
of the Federal Constitution, 18S0, in Southern Law Review, New Series, Vol. VI, p. 351.) 

Yet it is a characteristic of the race both in England and America that it has never really 
broken with the past. Whatever of novelty may appear from time to time, there is ever 
under all the great and steady force of historic continuity. (C. Ellis Stevens, Sources of the 
Constitution of the United States, 1894, 2nd edition, p. xvii.) 

In fact, the distribution of political powers between co-ordinate governments — a system 
which sprang up in Plymouth, Massachusetts Bay, Connecticut and Rhode Island — had 
no existing counterpart in the countries of the civilized world. It can be historically ex- 
plained only as the instinctive reproduction of primitive institutions under the influence of 
a primitive environment. {I'Villiam C. Morey, The Sources of American Federalism, 1893, 
The American Academy of Political and Social Science, Vol. VI, p. 211.) 

The new political system was a modification neither of the Confederation of 1781, nor 
of the Albany Union of 1754, nor of the New England Confederacy of 1643. These super- 
ficial alliances served, it is true, to bring the colonies and States into more amicable relations, 
by which they could aid each other against their common foes. But none of them contained 
the essential and distinctive features of that composite state-system which was established 
by the Constitution of 1787. We must search deeper into American political life, and 



2 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

perhaps into the common political life of our Teutonic, and even our Aryan ancestors to ; 
find the true historical sources of American federalism. {William C. Morey, The Sources of\ 
American Federalism, 1895, The American Academy of Political and Social Science, Vol, I 
VI, p. 204.) 

In the old system assemblies were not formally instituted, but grew up of themselves, 
because it was the nature of Englishmen to assemble. {Sir John Robert Seeley, The Ex- 
pansion of England, 1883, American edition, p. 67.) 

A proposition for a Union was suggested at a meeting of Connecticut magistrates and 
ministers in Boston, in 1637. {Richard Frothingham, The Rise of The Republic of the^ 
United States. 1872, p. 39.) 

The New-England Confederacy recognized the equality of the colonies that were parties 
to it, and the inviolability of their local governments ; but the provision's designed to promote 
the common welfare were a crude embodiment of the unipn element. {Richard Frothingham, 
The Rise of The Republic of the United States, 1872, p. 72.) 

But it is beginning to be realized that the Constitution of the United States, though 
possessing elements of novelty, is not, after all, the new creation that this idea would imply. 
It is not, properly speaking, the original composition of one body of men, nor the outcome 
of one definite epoch, — it is more and better than that. It does not stand in historical isola- 
tion, free of antecedents. It rests upon very old principles, — principles laboriously worked 
out by long ages of constitutional struggle. It looks back to the annals of the colonies and 
of the mother-land for its sources and its explanation. And it was rendered possible, and 
made what it is, by the political development of many generations of men. {C. Ellis Stevens, 
Sources of the Constitution of the United States, 1894, 2nd edition, pp. viii-ix.) 

The best reason for American pride in the Constitution lies, not in the creative genius 
of its framers, nor in the beauty and symmetry of their work, but in the fact that it was 
and is a perfect expression of the institutional methods of its people. It is for that reason 
that it meets their needs as well to-day as in 1787-89. So long as they shall continue in 
the ways of their fathers ; so long as they shall regard with pronounced disfavor the 
political quacks who constantly beg them to hazard a trial of never-tested remedies : so long 
may they continue to take a just pride in their Constitution, under all its possible coming 
changes, as one which has been " adequately discussed," and the results of the discussion 
of which have been fully "tested by experiment." {Alexander Johnston, The First Century 
of the Constitution, The New Princeton Review, Vol. IV, No. 2, 1887, p. 190.) 



. CHAPTER I 

RISE OF THE IDEA OF UNION 

On the 11th day of November, according to the old, but on the 21st day of 
November, 1620, according to the new order of things, some forty-one pas- 
sengers of the Mayflower, whom a grateful posterity calls the Pilgrims, bring- 
ing to the New World a new type of men and a new spirit which we may with 
just pride call the American spirit, entered into a compact for their government 
when they should leave the little vessel which had carried them across a stormy 
ocean out of their course to the Hudson, for which region they had a patent, 
to the inhospitable shores of New England, for which they had no patent. 
The passage across the Atlantic had been stormy in more ways than one. for, 
in the absence of a patent from the New England Company, the Pilgrims 
were without title to the soil upon which they were soon to set foot. In the 
absence of a charter from the Crown, they were without authority to govern 
themselves as a body politic. Because of these things and also because of 
the frailties to which even some of their number were subject, the better part 
of them, believing that government as instituted among men derives its just 
powers from the consent of the governed and that this consent was in itself 
a compact on their part, entered into that agreement which we today call the 
Mayflower Compact, which they thus happily expressed : 

In y° name of God, Amen. We whose names are underwriten, the loyall cSmJalt^""*' 
subjects of our dread soveraigne Lord, King James, by y" grace of God, of 
Great Britaine, Franc, & Ireland king, defender of y^ faith, &c., haveing 
undertaken, for y" glorie of God, and advancemente of y® Christian faith, and 
honour of our king & countrie, a voyage to plant y" first colonic in y® 
Northerne parts of Virginia, doe by these presents solemnly & mutualy in y* 
presence of God, and one of another, covenant & combine our selves togeather 
into a civill body politick, for our better ordering & preservation & further- 
ance of y" ends aforesaid ; and by verlue hearof to enacte, constitute, and 
frame such just & eqiiall lawes, ordinances, acts, constitutions, & offices, from 
time to time, as shall be thought most meete & convenient for y^ generall good 
of y® Colonic, unto which we promise all due submission and obedience.^ 

Just as the separatists, whom we call the Pilgrim fathers, traversed a waste 
of waters from the Old World to the New, so separatists in the political sense 

1 William Bradford, History of Plymouth Plantation, Collections of the Massachusetts 
Historical Society, 1856, 4th Series, Vol. iii, pp. 89-90. 

3 



4 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of the word traversed a waste of wilderness and left three of the then eight 
towns of Massachusetts Bay in 1635, pushing to the west — with the permis- 
sion, be it said, of that commonwealth, or rather, acting under a commission 
of its General Court for a twelvemonth. Establishing three towns on the 
western bank of the Connecticut River, they laid the foundation of the State 
of that name; furnishing in its constitution of 1639, known as the Funda- 
mental Orders of Connecticut, what has been called the first written constitu- 
tion in the modern sense of the term as a permanent lirnitation on governmental 
powers known in history, and suggesting, it has been claimed, by the confed- 
eration of its towns, which, however, retained the power not delegated to the 
State, the idea of that more perfect Union composed of the American States. 
The spirit which pervaded these newer Pilgrims, and which today pervades 
the western world, was stated by Thomas Hooker, one of the chief settlers, 
from his pulpit in Hartford some seven months before the Fundamental Or- 
ders were drafted and went into effect. He chose for his text the 13th verse 
of the first chapter of Deuteronomy : " ' Take you wise men, and under- 
standing, and known among your tribes, and I will make them rulers over 
you.' Captains over thousands, and captains over hundreds — over fifties — 
over tens, &c." In the course of his sermon he is reported to have said, under 
the caption of Doctrine, in the brief extract of it made by one of the congrega- 
tion: 

I. That the choice of public magistrates belongs unto the people, by 
God's own allowance. 

II. The privilege of election, which belongs to the people, therefore, must 
not be exercised according to their humours, but according to the blessed 
will and law of God. 

III. They who have power to appoint officers and magistrates, it is in 
their power, also, to set the bounds and limitations of the power and place 
unto which they call them. 

And the American Hooker is reported as giving for his American polity 
the following Reasons: 

1. Because the foundation of authority is laid, firstly, in the free con- 
sent of the people. 

2. Because, by a free choice, the hearts of the people will be more in- 
clined to the love of the persons [chosen] and more ready to yield [obedi- 
ence]. 

3. Because, of that duty and engagement of the people.^ 

In the preamble to the Fundamental Orders, the American theory of gov- 
ernment is thus stated, omitting provisions concerning churches, in which mem- 
bership, however, was not essential to the exercise of civil rights: 

1 Abstracts of Two Sermons by Rev. Thomas Hooker, from the short-hand notes of Mr. 
Henry Wolcott, Collections of the Connecticut Historical Society, 1860, Vol. i, p. 20. 



RISE OF THE IDEA OF UNION P 

Forasmuch as it hath pleased the Allmighty God by the wise disposition 
of his diuyne p''uidence so to Order and dispose of things that we the In- 
habitants and Residents of Windsor, Harteford and Wethersfield are now 
cohabiting and dwelHng in and vppon the River of Conectecotte and the 
Lands thereunto adioyneing; And well knowing where a people are gath- 
ered togather the word of God requires that to mayntayne the peace and vnion 
of such a people there should be an orderly and decent Gouernment estab- 
lished according to God, to order and dispose of the affayres of the people 
at all seasons as occation shall require ; doe therefore assotiate and conioyne 
our selues to be as one Publike State or Corhonwelth ; and doe, for our selues 
and our Successors and such as shall be adioyned to vs att any tyme here- 
after, enter into Combination and Confederation togather, to mayntayne 
and p''searue the liberty and purity of the gospell of our Lord Jesus w'^'^ 
we now p''fesse ... ; As also in o"" Ciuell Affaires to be guided and 
gouerned according to such Lawes, Rules, Orders and decrees as shall be 
made, ordered & decreed . . } 

As in the case of Plymouth, so in the settlements in the Connecticut valley, 
there was apparently no grant of title to land and there was no charter from 
the Crown. In the Mayflower Compact, the signers profess loyalty and 
obedience to their " dread soveraigne Lord," but find in themselves authority 
" to enacte, constitute, and frame such just & equall laws, ordinances, acts, 
constitutions, & offices, from time to time," which they themselves shall con- 
sider to be in the general interest and good of the colony. In the Funda- 
mental Orders there is no reference to their " dread soveraigne Lord," and 
the confederating towns, recognizing that in their case government derives its 
just consent from their inhabitants and residents, proceed without further ado 
to provide for the election of a governor, magistrates and deputies to the gen- 
eral assemblies or courts " for makeing of lawes, and any other publike occa- 
tion, w'^'' conserns the good of the Comonwelth." - 

The views of the Pilgrim fathers and of the Connecticut settlers in the 
matter of compact and the action of the Connecticut settlers in framing a 
system of government for their self-created body politic have been selected, 
not for the purpose of establishing priority in behalf of one or the other but as 
showing how, freed from the environment of the Old, the settlers of the New 
World stated and put into practice the doctrines held by them as individuals 
when unrestrained by the provisions of a charter or instructions from the 
Crown, and as indicating the conceptions of government likely to take visible 
form and effect in this western world when the inhabitants of the colonies 
were free to devise constitutions for their States and a union of those 
States. 

1 F. N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other 
Organic Laws of the United States of America, 1909, Vol. I, p. 519; B. P. Poore, The Fed- 
eral and State Constitutions, Colonial Charters, and Other Organic Laws of the United 
States. 1877, p. 249. 

-Thorpe, ibid., p. 520; Poore, ibid., p. 250. 



b THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The possibility of union was present to the minds of the American colonists 
even in the 17th century, shown by the New England Confederation, organized 
in 1643 and surviving the restoration of the Stuarts in 1660. William Penn, 
a great and a good man, held in grateful remembrance not only by the Com- 
monwealth which bears his name but by the American people, and indeed the 
world at large, proposed a union of the colonists as far back as 1697. A plan 
proposed by Dr. Franklin in 1754 was, as its author aptly said, rejected in 
America because it had too much of the prerogative, and in England because it 
was too democratic, and was therefore not in accord with the plans of the 
home government. 

These plans are of interest as showing how propinquity leads to union, and 
in our case to a union recognizing the greater interest of the whole without 
degrading the colonies or the states into provinces. 

The aim or purpose of the New England Confederation, as it is generally 
called, is admirably and quaintly set forth in what may be called the preamble, 
or inducement to it, and the first article runs as follows : 

Whereas we all came into these parts of America with one and the same 
end and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, 
and to enjoy the liberties of the Gospel, in purity with peace ; and whereas in 
our settling (by a wise providence of God) we are further dispersed upon 
the Sea-Coasts and Rivers, then was at first intended, so that we cannot (ac- 
cording to our desire) with convenience communicate in one Government and 
Jurisdiction ; and whereas we live encompassed with people of severall Na- 
tions, and strange languages which hereafter may prove injurious to us and 
our posterity: And forasmuch as the Natives have formerly committed 
sundry insolencies and outrages upon severall Plantations of the EngHsh, 
and have of late combined themselves against us. And seeing by reason of 
the sad Distractions in England, which they have heard of, and by which 
they know we are hindered both from that humble way of seeking advice 
or reaping those comfortable fruits of protection which, at other times, we 
jnight well expect; we therefore doe conceive it our bounden duty, without 
delay, to enter into a present Consotiation amongst our selves, for mutuall 
help and strength in all our future concernments, that, as in Nation, and 
Religion, so, in other respects, we be, and continue, One, according to the 
tenour and true meaning of the ensuing Articles. 

^- I. Wherefore it is fully Agreed and Concluded by and between the parties, 
or Jurisdictions above named, and they doe joyntly and severally by these 
presents agree and conclude, That they all be, and henceforth be tailed by 
the name of The United Colonies of New-England} 

The second article states that the United Colonies entered into this " firm 
and perpetuall league of friendship and amity, for offence and defence, mutuall 
advice and succour . . . and for their own mutuall safety, and wellfare." 

The third article limits the Union to the colonies of Massachusetts, Ply- 

1 Records of the Colonv or Jurisdiction of New Haven from May, 1653, to the Union, 
Charles J. Hoadly, ed., 1858, p. 562. 



RISE OF THE IDEA OF UNION / 

mouth, Connecticut and New Haven, leaving out Rhode Island unless it would 
acknowledge the jurisdiction either of Massachusetts or of Plymouth. This 
the Rhode Island settlement refused to do and its application for admission was 
rejected. This little community has had a mind of its own. It was not a 
member of the first Union; it failed to send delegates to the Constitutional 
Convention of 1787, and it left itself out of that greater Union which we call 
the United States until it, the smallest, decided to throw in its lot with the 
other and larger States. 

The fourth article provided that the expenses of warfare, — wars were to be 
just, — offensive or defensive, " both in men, provisions, and all other disburse- 
ments," should be borne according to the males within each of the colonies 
" from sixteen yeares old, to threescore, being inhabitants there," and the 
spoils of war, if any there should be, were to be " proportionably divided 
among the said Confederates." 

The fifth article declared that Massachusetts, as the larger colony, should 
furnish against the enemy one hundred armed men, and that each of the others 
should furnish forty-five, and in this proportion if more or less were needed. 
This was, however, only to apply to jCist wars. A method was needed and 
provided for determining whether the wars were just, for if they were not the 
" Confederates " were not to be saddled with the expense of the member caus- 
ing an unjust war. The commissioners of the Confederation were to deter- 
mine this, " and if it appear, that the fault lay in the party so invaded, that 
then, that Jurisdiction, or Plantation, make just satisfaction, both to the invad- 
ers, whom they have injuried, and bear all the charges of the war themselves, 
without requiring any allowance from the rest of the Confederates toward the 
same." ^ 

After having stated the general aims and purposes of the Confederation to 
be for mutual protection, and the part which each should play in case of war, 
which the Union evidently contemplated as a defensive measure, the articles 
pass to a question no less important and more germane to the present purpose. 
In the sixth article the Confederation is looked upon as having interests of its 
own, superior to and different from the interests of the contracting parties, 
and a careful line of demarcation is drawn between the league on the one hand 
and the members thereof on the other. Equality, however, was the life and 
breath of the agreement. Each of the four jurisdictions was to appoint two 
commissioners, fully empowered by each of the colonies " to hear, examine, 
weigh, and determine all affaires of war, or peace, leagues, ayds, charges, and 
numbers of men for war, division of spoyles, or whatsoever is gotten by con- 
quest, receiveing of more Confederates, or Plantations into Combination with 
any of these Confederates," but " not intermedling with the Government of 
1 Ibid., p. 564. 



8 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

any of the Jurisdictions which by the third Article is to be " preserued intirely 
to themselves." Six of the eight commissioners were empowered " to settle, 
and determine the businesse in question," but if this number should fail to 
agree then the matter was to be referred to the colonies, and if " the businesse 
so referred, be concluded, then to be prosecuted by the Confederates, and all 
their Members." A meeting was to be held the first Thursday in each Sep- 
tember of the year and in regular rotation at each capital of the contracting 
colonies. 

By the seventh article, a president of the commissioners was to be elected 
by them, or any six of them, but he was to be a presiding officer, not an execu- 
tive. 

The eighth article has some prophetic provisions. Thus, the commissioners 
were to " endeavoure to frame and establish Agreements and Orders in gen- 
erall cases of a civil nature, wherein all the Plantations are interested, for 
preserving peace amongst themselves, and preventing (as much as may be) all 
occasions of war, or differences with others, as about the free and speedy pas- 
sage of Justice in each Jurisdiction, to all the Confederates equally, as to 
their own, receiving those that remove from one Plantation to another, with- 
out due Certificates." And in the last of these prophetic provisions are the 
surrender upon request of " any Servant run away from his Master, into any 
other of these Confederated Jurisdictions," and the surrender of escaped 
prisoners or fugitives from justice upon request of the magistrates of the 
colony from which the escape was made. 

The ninth article is also reminiscent, as it were, of the future, stipulating 
that, as " the justest Wars may be of dangerous consequence, especially to 
the smaller Plantations in these United Colonies," it was agreed that none of 
them should " at any time hereafter begin, undertake or engage themselves, or 
this Confederation, or any part thereof in any War whatsoever (sudden ex- 
igents with the necessary consequences thereof excepted . . .) without the 
consent and agreement of the forenamed eight Commissioners, or at least six 
of them, as in the sixt Article is provided." 

The tenth article permitted, in default of the attendance of all the commis- 
sioners duly notified to attend, four to act, but six were nevertheless required 
to determine the justice of the war, and in the eleventh article it was agreed: 

That if any of the Confederates shall hereafter break any of these present 
Articles, or be any other way injurious to any one of the other Jurisdictions 
such breach of Agreement, or injury shalbe duly considered, and ordered 
by the Commissioners for the other Jurisdictions, that both peace, and this 
present Confederation, may be intirely preserved without violation.^ 

The commissioners of the contracting parties, other than Plymouth, were 

^Records of the Colony of New Haven, p. 566. 



RISE OF THE IDEA OF UNION 9 

duly authorized to sign the agreement, which they did on May 19 / 29, 1643. 
It was therefore allowed that the articles and agreements of " this perpetuall 
Confederation " should be submitted to the good people of Plymouth, and 

That, if Plimoth consente, then the whole treaty as it stands in these 
present articls is, and shall continue, firnie & stable without alteration. But 
if Plimoth come not in, yet y** other three confederats doe by these presents 
confeirnie y^ whole confederation, and y^ articles therof.^ 

The General Court of Plymouth authorized its commissioners to ratify and 
confirm the articles August 29/September 7, 1643, which they did at Boston, 
at which time and place the other commissioners subscribed the Articles of 
Union on behalf of their respective colonies. 

The Mayflower Compact of November 11/21, 1620, had set forth the 
American conception of the State as the agent of the people creating it, and 
here in this little confederation of four straggling colonies, there lies hidden 
the germ of a greater Union, in which the members should be States, not 
provinces, determining their internal affairs, and be represented by two com- 
missioners, chosen by each of them upon a footing of equality in a larger coun- 
cil. It is not meant, of course, that this larger union was the outgrowth of the 
smaller, but merely that the spirit which produced this greater union was 
already in evidence in the New World. ^ 

The idea of union dwelt in the mind of William Penn. Peace with Penn 
was a passion. In 1693 he published his well known essay Toward the 
Present and Future Peace of Europe, proposing the establishment of an Euro- 
pean diet, parliament or estates, moved thereto, as he says, by the project of 
Henry IV; and it is interesting to note, in passing, that Penn's larger project 
is still before the world, for it is today the basis of projects of leaders of 
thought on both sides of the Atlantic. It can well be imagined, therefore, 
that, as the proprietor and founder of the Commonwealth which bears his 
name, he had a special interest that it should dwell in peace, as well as a general 
desire that the plantations, which already had within them the possibilities of 
statehood, should dwell in peace and harmony. Therefore, four years after 

1 William Bradford, History of Plymouth Plantation, Collections of the Massachusetts 
Historical Society, 1856, 4th Series, Vol. Ill, p. 422. 

2 Of the Confederation, embracing four colonies, thirty-nine towns with a population of 
24,000 souls, a well informed and just historian has said: "A great principle was at the 
bottom of the confederation; but, noble as were the aims of those who handled it, they had 
not yet attained to sufficient breadth of view to apply it even to the whole of New England." 
Richard Frothingham, The Rise of the Republic of the United States, 1872, p. 43. 

The importance of the Union of the struggling colonies as a precedent was however rot 
lost on the British chronicler, Chalmers, who said, properly enough, that it " offers the first 
example of collition in colonial story and showed to party leaders in after times the advan- 
tages of concert." George Chalmers, Political .-Innals of the Present C'.ii'cd Colonies from 
their Settlement to the Peace of 1763 (1780), p. 177, 



10 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

his international proposal, he suggested a colonial plan of union, entitling his 
plan: 

A Briefe and Plaine Scheam how the English Colonies in the North 
parts of America Viz : Boston Connecticut Road Island New York New 
Jersey, Pensilvania, Maryland, Virginia and Carolina may be made more 
usefull to the Crowne, and one anothers peace and safty with an universall 
concurrance. 

The colonies were to meet by their stated and appointed deputies once a 
year, and oftener if need be, during the war which then raged in Europe and 
involved the American colonies as at this writing it does the American States, 
and in times of peace at least once in two years, " to debate and resolve of such 
measures as are most adviseable for their better understanding, and the publick 
tranquility and safety; " that each colony was to be represented by two persons, 
as Penn was careful to point out, " well qualified for sence sobriety and sub- 
stance." These were to compose the Congress, as the assembly was to be 
called, of twenty persons, to be under the presidency of the King's Commis- 
sioner — who was to be in this case the Governor of the colony of New York, 
as, according to the plan, the Congress was to meet " near the Center of the 
Colonies; " and in time of war the King's Commissioner was to be commander 
of the colonial quotas. In the sixth article the gist of the plan is given, and of 
the activities of the deputies it is said : 

That their business shall be to hear and adjust all matters of Complaint 
or differences between Province and Province, As l^*- where persons quit 
their own Province and goe to another, that they may avoid their just debts 
tho they be able to pay them, 2^ where oft'enders fly Justice, or Justice can- 
not well be had upon such oft'enders in the Provinces that entertaine them, 
3*"^ to prevent or cure injuries in point of commerce, 4"\ to consider of 
ways and means to support the union and safety of these Provinces against 
the publick enemies. In which Congresse the Quotas of men and charges 
will be much Easier, and more equally sett, then it is possible for any estab- 
lishment made here [in England] to do ; for the Provinces, knowing their own 
condition and one anothers, can debate that matter with more freedome and 
satisfaction and better adjust and ballance their affairs in all respects for 
their common safty.^ 

In this plan we have a forerunner of the Continental Congress, for it is to 
embrace all English colonies in the " North parts of America." Congress it 
is called, and it is provided with a presiding officer. 

With unerring instinct Penn laid his finger, in this first of federal projects 
for the English-speaking colonies of the continent, on what was in fact the 
object of the American .revolution, the better government of themselves and 
the safeguarding of their interests by the colonials in America, rather than by 

1 William Penn's Plans for a Union of the Colo'files, 8tlT February, 1696-97, The Penn- 
sylvania Magazine of History and Biography, Vol. xi, 1887, p. 496. 



RISE OF THE IDEA OF UNION 11 

the English in England. Here again it will be observed that each colony, 
irrespective of size or population, has an equal voice and an equal number of 
representatives, and here again the number is, as in the New England Con- 
federation and in the Constitution of the United States, two for each Colony 
or State. As in the case of the Confederation, it is not meant to suggest that 
Penn's plan gave birth to our instrument of government, but as the articles of 
the New England Confederation show the advantages of union for their gen- 
eral welfare, so this plan shows, on the part of an enlightened Englishman, the 
method which, put into practice, might have made of the colonies great, self- 
governing dominions, as is Canada today to the north of the great Republic. 

The next proposal which can be said to have had an important influence 
upon the destinies of the colonies was made in 1753 by Great Britain, which 
viewed with alarm and apprehension the encroachments of France in America, 
and which therefore directed the Governors of the American colonies to ap- 
point delegates to a Congress which was to meet at a time and a place to be 
fixed by the Governor of New York, in order to treat with the Six Nations of 
Indians of that colony, to secure their alliance in case of war with France and 
to concert measures against that power. This body, called the Albany Con- 
gress from the name of the place in which it assembled, was composed of dele- 
gates froni seven colonies and met on June 19, 1754. There were present four 
delegates from New Hampshire, five from Massachusetts, two from Rhode 
Island, three from Connecticut, five from New York, four from Pennsylvania, 
and two from Maryland. 

There was, from the opening of the Congress, a strong sentiment in favor 
of a union of the Colonies, which on the 24th was unanimously declared " at 
present absolutely necessary for their security and defence."^ A committee 
of one from each of the seven colonies present was appointed to prepare a 
plan of union. On July 9th, Dr. Franklin, who represented Pennsylvania, was 
" desired to make a draught of it." ^ On the following day a draft of Union, 
largely drawn by him, was presented and adopted, and on July 11, 1754. the 
Congress adjourned. 

By the "Albany" or "Dr. Franklin's" plan of union (it is known by 
either name), the Union was to consist of all the British colonies in North 
America, with the exception of Georgia, which had been but recently founded, 
of Delaware, which was not yet independent of Pennsylvania, and of Vermont, 
which was not yet a distinct colony. The purpose of the Union was stated to 
be " for their mutual Defence and Security, and for extending the British Set- 
tlements in North America." The method by which the union was to be 
effected is thus set forth : 

1 Documents Relative to the Colonial History of the State of New York, J. R. Brodhead 
ed., 1855, Vol. vi, p. 859. 

2 Ibid., p. 885. 



12 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

That humble application be made for an Act of the Parliament of Great 
Brittain, by virtue of which, one General Govern' may be formed in America, 
including all the said Colonies, witliin, and under which Govern' each Colony 
may retain each present constitution, except in the particulars wherein a 
change may be directed by the said Act, as hereafter follows.^ 

The government of the union was to consist of a President-General, ap- 
pointed by the Crown, and a Grand Council, chosen by the representatives of 
the people of the several colonies. The members of the Grand Council were 
to be appointed by the House of Representatives of each of the colonies, but 
not upon a footing of equality, the larger colonies having a larger represen- 
tation, as Franklin says in his interesting commentary, " in some degree 
according to the proportion it contributed to the general treasury." ^ Forty- 
eight in all were to be chosen, of which the then largest colonies, Massachu- 
setts Bay and Virginia, were to have seven, and the smallest. New Hampshire 
and Rhode Island, two each, the members of the council meeting for the first 
time in the city of Philadelphia upon the call of the President-General. 

The members thus selected were to sit for a period of three years, the num- 
ber of delegates allowed each colony was to be revised after the first three 
years of the union, and " from time to time, in all ensuing elections," to be 
based upon " the proportion of money arising out of each colony to the 
general treasury." The council thus composed was to meet yearly, and oftener 
if required, at such time and at such place as agreed to before adjournment, 
or in case of emergency, as was to be determined by the President-General 
upon the written consent of seven members of the council " with due and 
timely notice to the whole." The council itself was to choose its speaker, and 
it was neither to be dissolved nor prorogued, nor to sit longer than six weeks 
at any one time, without their own consent " or the special command of the 
crown." The members were to be allowed ten shillings per diem during their 
session and journey to and from the place of meeting, and twenty miles were 
to be reckoned a day's journey. 

The assent of the President-General was necessary to all acts of the Council 
which he should execute and he was authorized, in words which suggest the 
language of that greater instrument in whose framing the author of the Albany 
plan subsequently took part, " with the advice of the Grand Council " to make 
treaties with the Indians and also to declare peace or war with Indian nations. 
The President and Council were to regulate trade with the Indians, to act for 
the Crown, which henceforth was to be the sole purchaser of lands from the 
Indians, to grant settlements " till the crown shall think fit to form them into 
particular governments." The President and Council were likewise to raise 

1 Documents Relative to the Colonial History of New York, Vol. vi, p. 889. 

2 A. H. Smyth, The Writings of Benjamin Franklin (New York, the Macmillan Company, 
1907), Vol. iii, p. 212. See also Jared Sparks, The Works of Benjamin Franklin, Vol. iii, 
p. 41. 



RISE OF THE IDEA OF UNION 13 

soldiers and build forts, to equip vessels for their defense and the protection of 
their trade, but not to " impress men in any colony, without the consent of the 
legislature." For these purposes the President-General and the Council were 
empowered " to make laws, and lay and levy such general duties, imposts, or 
taxes, as to them shall appear most equal and just (considering the ability and 
other circumstances of the inhabitants in the several colonies), and such as may 
be collected with the least inconvenience to the people; rather discouraging 
luxury, than loading industry with unnecessary burthens." 

Provision was made for the appointment of a general and a particular 
treasurer when necessary, with the proviso that no money w^as to be paid out 
except "by joint orders of the President-General and Grand Council " and in 
pursuance of law, and that accounts were to be yearly settled and reported to 
the assemblies of the different colonies. 

The quorum for the Grand Council was fixed at twenty-five members, pro- 
vided there be a representative from the majority of the colonies. The Presi- 
dent-General and the Grand Council were a law-making body, and the article 
on this important head reads : 

That the laws made by them for the purposes aforesaid shall not be 
repugnant, but, as near as may be, agreeable to the laws of England, and 
shall be transmitted to the King in Council for approbation, as soon as may 
be after their passing; and if not disapproved within three years after presen- 
tation, to remain in force.^ 

In case of the death of the President-General the speaker of the Grand Council 
was to act " till the King's pleasure be known." 

The provision concerning the officers is interesting, as this in one respect 
suggests the device of a later plan of union, in that all military and naval 
officers " to act under this general constitution " were to be nominated by the 
President-General with the approval of the Grand Council. But civilian offi- 
cers were themselves to be nominated by the Council and to receive the Presi- 
dent-General's approbation before entering upon the performance of their 
duties. It was foreseen that vacancies would occur either by death or removal 
of the military and civil officers appointed under this Constitution, and it was 
therefore provided that the Governor of the province should appoint others in 
their place " until the pleasure of the President-General and Grand Council can 
be known." Here again there is a suggestion of appointments to be made sub- 
ject to the confirmation of the grand council known as the Senate of the United 
States. 

The plan ended with a very important provision, safeguarding the colonies 

against usurpation on the part of the proposed government, for the military 

and civil establishments in each colony were to remain " in their present state, 

the general constitution notwithstanding," and a right was expressly granted to 

1 Smyth, ibid., p. 223 ; Sparks, Vol. iii, p. 52. 



14 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

each colony, contrary to the provisions of the constitution, to defend itself on 
a sudden emergency at the expense of the union. 

Dr. Franklin's plan was premature. The colonies' did not as yet feel the 
necessity of union in order to protect themselves against what they regarded 
as unjustifiable oppression on the part of the mother country, and they were 
therefore unwilling to make what they were pleased to call the concessions 
contained in the Albany plan. The home authorities, on the other hand, were 
apparently not ready to consolidate their colonial empire in America, and in 
any event they were likewise unwilling to make the concessions to self-govern- 
ment recommended in the Albany plan. As Dr. Franklin himself said, " the 
Crown disapproved it, as having too much Weight in the Democratic Part of 
the Gonstitution ; and every Assembly as having allowed too much to Preroga-^" 
tive. So it was totally rejected." Many years after the Albany Convention, 
and two years after the adoption of the Constitution of the more perfect Union, 
the venerable Dr. Franklin recurred to the Albany plan and thus expressed] 
himself concerning the results which in his opinion would have followed, had 
his plan of Union been adopted: 

On Reflection it now seems probable, that if the foregoing Plan or some 
thing like it had been adopted and carried into Execution, the subsequent 
Separation of the Colonies from the Mother Country might not so soon have 
happened, nor the Mischiefs suffered on both sides have occurred perhaps 
during another Century. For the Colonies, if so united, would have really 
been, as they then thought themselves, sufficient to their own Defence, and 
being trusted with it, as by the Plan, an Army from Britain, for that purpose 
would have been unnecessary ; The Pretences for framing the Stamp Act 
would then not have existed, nor the other projects for drawing a Revenue 
from America to Britain by Act of Parliament, which were the Causes of the 
Breach & attended with such terrible Expense of Blood and Treasure ; so 
that the different Parts of the Empire might still have remained in Peace and 
Union. ^ 

By 1754 events were moving rapidly. The man who was destined to lead 
the Revolutionary armies was already in the field as a subaltern in the French 
and Indian War, which is the name by which the Seven Years' War of 
Europe is known in America. Franklin, who was to render hardly less dis- 
tinguished service to his age, typified American thinking at its best. The con- 
quest of Canada had given Great Britain an unbroken domain from the Gulf 
of Mexico northward. The Treaty of Peace had left a clear title to the terri- 
tory from the Atlantic Ocean to the Mississippi River, with only Spain to the 
west of that water. The times seemed ripening for a uniform system of 
government. There was no longer a formidable enemy threatening the exist- 
ence of the colonies from without; the home authorities felt that henceforth 

1 A. H. Smyth, The Writings of Benjamin Franklin, Vol. iii, p. 226 note. 






RISE OF THE IDEA OF UNION IS 

they were to have a free hand in moulding the colonies to their will, and the 
servants of the Crown had begun to put the imperial house in order. 

Without indulging in criticism of the Crown and its advisors, and without vi"/^-^— imperial 
commendation of the colony and its advocates, it was not. unreasonable, from ^<iCoioniai 
the standpoint of the mother country, that the colonies should be subjected to 
a centralized control, that they should contribute to their own support, that 
they should be made to feel that they were an integral portion of the empire, 
and that therefore they should assume their share of the imperial burden, to be 
determined by the imperial, not by the colonial, authorities. Nor were the 
views of the colonists unreasonable from their own point of view, in that they 
had opened up and settled the New World, that they had brought with them 
the common law and the rights of Englishmen, that they were not only inher- 
ently entitled to the blessings of local government, but that they deserved such 
government by the services they had rendered, and that, while far from unwill- 
ing to perform their full duty to the empire, they nevertheless believed that 
the money raised by taxing them should be spent in America in accordance 
with their judgment and that they themselves should determine what their 
contributions should be, instead of having them determined by authorities 
across the seas, before whom they were not represented, and whose action they 
could neither influence nor control. The home government looked at the 
colonies from the standpoint of the past, as though they existed for the benefit 
of the home country and that the home authorities were naturally superior to 
them. The colonies, on the other hand, looked at their relations with the 
mother country from the standpoint of the future, in which they were to be 
integral parts of a great empire and in the economy of which they were to be 
practically self-governing dominions, united by language, tradition, and en- 
lightened interest, but in which there was to be no mark or suggestion of in- 
feriority. The new wine broke the old bottles. 

It was foreseen that the adoption of a Declaration of Independence would Foresight 
necessitate some form of general government, because, in the opinion of the 
colonists, such a Declaration would break the bonds of allegiance to England, 
create of the erstwhile colonies free and independent States, and in the ab- 
sence of a superior they would be obliged to devise some form of agreement 
and cooperation ; otherwise their efforts would be unavailing. It was further 
foreseen by some ia the Congress that the resort to arms would lead inevitably 
to independence, and that some agreement upon a union and a method of gov- 
ernment should precede any declaration as it would inevitably have to follow it. 
The shrewdest mind in the country, and therefore in the Congress, was, it 
need hardly be said, Benjamin Franklin, and he was ready with a " plan " in 
1775 as he had been ready with a plan of union twenty-one years earlier at 
the first Congress of the colonies at Albany. Therefore, on July 21, 1775, he 



16 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

laid his second plan before Congress, providing for a union of the colonies, 
soon to be independent States.^ But the Congress, apparently, did not then 
measure aright the consequences of standing by Massachusetts in its armed 
resistance. 

Dr. Franklin's plan provided for the union of the colonies for purposes of 
resistance against Great Britain, but apparently contemplated the possibility 
of a redress of grievances and a reconciliation with the mother country, where- 
upon the colonies were to " return to their former connexion and friendship 
with Britain." It was, however, foreseen by the venerable statesman, because 
of his intercourse with British men of affairs and his knowledge of the British 
people, that the reconciliation might not take place, and the last clause of his 
plan therefore runs : " But on Failure thereof this Confederation is to be 
perpetual." ^ 

Notwithstanding the fact that his project was one primarily for colonies, 
not for States, the union which he proposed was of a very close nature, and 
would have rested upon the people rather than upon the colonies, although the 
rights of the colonies as such, or rather of the people within the colonies, were 
safeguarded. For example, there was to be a general congress, composed of 
delegates selected by each colony, but the number thereof for each was to de- 
pend upon the population of the colony, and a delegate was to be allowed for 
every five thousand male inhabitants, or, as the good Doctor put it, " male 
polls between sixteen and sixty years of age." The congress composed in this 
way would not represent solely the colonies but the people who happened to 
reside within their territorial limits, and as the Congress was therefore the 
representative of the people it was natural that the Congress should be em- 
powered to provide for the general welfare and to enact laws for this purpose. 
It was to be the power and the duty of Congress, by Article V, to pass upon 
questions of war and peace, to send and to receive ambassadors and to con- 
tract alliances, to settle all disputes and differences between the colonies, and, 
apparently, as an afterthought, for it is in brackets, to bring about " (the recon- 
ciliation with Great Britain)." The Congress also was, in Dr. Franklin's lan- 
guage, to plant new colonies when proper. It was also to make " such general 
ordinances as, though necessary to the general welfare, particular Assemblies 
cannot be competent to," and among these he specified " those that may relate 
to our general commerce, or general currency ; the establishment of posts ; and 
the regulation of our common forces." The Congress also was to appoint 
" all general officers civil and military, appertaining to the general confederacy, 
such as general treasurer, secretary, &c." As representation in the Congress 
was to be based upon population, not upon the colonies as such, it was natural 

1 Smyth, Writings of Benjamin Franklin, Vol. vi, p. 420; Sparks, Vol. v, p. 91. 

2 Smyth, p. 425 ; Sparks, p. 96. 



RISE OF THE IDEA OF UNION 17 

that the inhabitants having the largest representation should also bear a larger 
proportion of the burdens of government. Therefore, charges of war, " and 
all other general expenses to be incurred for the common welfare " were to be 
" defrayed out of a common treasury ... to be supplied by each colony in 
proportion to its number of male polls between sixteen and sixty years of age," 
and the proportion of each colony was " to be laid and levied by the laws of 
each colony." 

As still further showing the continental as distinct from the colonial idea, 
the quorum of the Congress was to consist of " one half of the members," and 
in the Congress itself and in the transaction of business each delegate was to 
" have a vote in all cases." The delegates to the Congress were to be elected 
annually and to meet at such time and place as should be agreed to in the next 
preceding Congress by rotation in the different colonies. In addition there 
was to be an executive council, appointed by the Congress out of its own body, 
to consist of twelve persons, and which was apparently to represent the Con- 
gress during its recess, " to execute what shall have been enjoined thereby ; to 
manage the general Continental business and interests ; to receive applications 
from foreign countries; to prepare matters for the consideration of the Con- 
gress ; to fill up, pro tempore, continental offices that fall vacant ; and to draw 
on the general treasurer for such moneys as may be necessary for general 
services, appropriated by the Congress to such services." 

It has been stated that the existence of the colonies was recognized, al- 
though they were not made the basis of representation and they were appar- 
ently to be denied an equal share in providing for the general welfare, for 
which purpose the plan of government was proposed. Dr. Franklin's further 
views are set forth in the third Article, which reads : 

That each Colony shall enjoy and retain as much as it may think fit of its 
own present Laws, Customs. Riglits. Privileges, and peculiar jurisdictions 
within its own Limits ; and may amend its own Constitution as shall seem best 
to its own Assembly or Convention.^ 

The plan in all its parts displays not merely a keen and penetrating mind 
but shows its author to be a resident of a large and populous State, which 
could safely entrust its interest to a general assembly in the full knowledge that 
its greatness, its extent and its power would secure it an ample return for the 
concessions, always more specious than real, of great bodies and of great 
persons. The little States apparently did not take kindly to the plan of the 
great Doctor; for although read by its author to the Congress on July 21, 
1775. it was neither adopted nor considered. There is no record in the Journal 
of the Congress of its having been read, and indeed the only testimony we 
have to that effect is the endorsement in Dr. Franklin's hand that it was read 

1 Smyth, ibid., p. 421 ; Sparks, Vol. v, p. 92. 



18 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



before Congress on the stated date. It is mentioned, however, in this connec- 
tion, for a twofold reason : to show that in July, 1775, a shrewd man of the 
world, who had suffered indignities at the hands of the British Government, 
was contented with a temporary union of the colonies, in the hope of a recon- 
ciliation with the mother country instead of advocating separation from Great 
Britain, and because Dr. Franklin's text seems to have been known to his 
friend and colleague John Dickinson, who a year later, as chairman of the 
committee formed for that purpose, prepared and presented a draft of the 
Articles of Confederation, after the independence of the colonies had been 
proclaimed. 



II 

INDEPENDENCE DECLARED 

The archbishop of Canterbury (Laud) kept a jealous eye over New-England. One 
Burdett of Piscataqua was his correspondent. A copy of a letter to the archbishop wrote 
by Burdett was found in his study and to this effect, viz. " That he delayed going to Eng- 
land that he might fully inform himself of the state of the place as to allegiance, for it was 
not new discipline which was aimed at but sovereignty, and that it was accounted perjury 
and treason in their general court to speak of appeals to the King." (Thomas Hutchinson^ 
The History of the Colony of Massachusets-Bay, Vol. I, 1764, p. <?(5.) 

There were no reason that one man should take upon him to be lord or judge over 
another; because, although there be according to the opinion of some very great and judicious 
men a kind of natural right in the noble, wise, and virtuous, to govern them which are 
of servile disposition ; nevertheless for manifestation of this their right, and men's more 
peaceable contentment on both sides, the assent of them who are to be governed seemeth 
necessary. {Richard Hooker, Of the Laws of Ecclesiastical Polity, 1594, Church edition, 
1868, Book I, Section 10, p. 54.) 

For there are no Examples so frequent in History, both sacred and prophane, as those 
of Men withdrawing themselves, and their Obedience, from the Jurisdiction they were born 
under, and the Family or Community they were bred up in, and setting up ticw Goverty- 
ments in other Places; from whence sprang all that number of pcttj' Commonwealths in 
the Beginning of Ages, and which always multiplied, as long as there was room enough, 
till the stronger, or more fortunate, swallowed the weaker; and those great ones again 
breaking to Pieces, dissolved into lesser Dominions. (John Locke, Two Treatises of Gov- 
ernment, J690, Book n, Ch. VHI, section 115, Works, Edition of 1714, Vol. //.) 

Thus, though looking back as far as Records give us any account of peopling the World, 
and the History of Nations, we commonly find the Government to be in one Hand; yet 
it destroys not that which I affirm, vie. That the Beginning of politick Society depends 
upon the Consent of the Individuals, to joyn into, and make one Society; who, when they 
are thus incorporated, might set up what Form of Government they thought fit. (.John 
Locke, Tzvo Treatises of Government, 1690, Book II, Ch. VIII, section Jo6, Works, Edition of 
17 1 4, Vol. II.) 

Men being, as has been said, by Nature, all free, equal, and independent, no one can 
be put out of this Estate, and subjected to the political Power of another, without his 
own Consent. The only VX^ay whereby any one devests himself of his natural Liberty, 
and puts on the Bonds of civil Society is by agreeing with other Men to joui and unite 
into a Community, for their comfortable, safe, and peaceable Living one amongst another, 
in a secure Enjoyment of their Properties, and a greater Security against any, that are 
not of it. (John Locke, Tivo Treatises of Government, 1690, Book II, Ch. VIII, section 
95, Works, Edition of 17 14, Vol. II.) 

Section 1. That all men are by nature equally free and independent, and have certain 
inherent rights, of which, when they enter into a state of society, they cannot, by any 
compact, deprive or divest their posterity; namely, the enjojTnent of life and liberty, with 
the means of acquiring and possessing property, and pursuing and obtaining happiness and 
safety. 

Sec 2. That all power is vested in, and consequently derived from, the people; that 
magistrates are their trustees and servants, and at all times amenable to them. 

Sec. 3. That government is, or ought to be, instituted for the common benefit, protection, 
and security of the people, nation, or community; of all the various modes and forms of 
government, that is best which is capable of producing the greatest degree of happiness, and 
safety, and is most effectually secured against the danger of maladministration ; and that, 
when any government shall be found inadequate or contrary to these purposes, a majority 
of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, 
or abolish it, in such manner as shall be judged most conducive to the public weal. (Virginia 
Bill of Rights adopted June 12, 1776. Ben: Perley Poore, The Federal and State Constitu- 

19 



20 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

tions. Colonial Charters, and other Organic Laws of the United States, Part II, 1877, pp. 
1908-1909.) 

We, therefore, the Representatives of the united States of America, in General Congress, 
Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, 
do, in the Name, and by Authority of the good People of these Colonies, solemnly publish 
and declare, That these United Colonies are, and of Right ought to be Free and Independent 
States ; that they are Absolved from all Allegiance to the British Crown, and that all political 
connection between them and the State of Great Britain, is and ought to be totally dissolved; 
and that as Free and Independent States, they have full power to le\T War, conclude 
Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which 
Independent States may of right do. And for the support of this Declaration, with a firm 
reliance on the Protection of Divine Providence, we mutually pledge to each other our 
Lives, our Fortunes and our sacred Honor. {The unanimous Declaration of Independence 
of the thirteen united States of America, in Congress, July 4, 1776, Revised Statutes of the 
United States, 1878, p. 5.) 

The writer whose ideas and phrases are most deeply impressed upon American political 
history is, beyond all doubt, John Locke. It is not difficult to explain the cause of his great 
influence. His "Treatise on Government," published in 1690, was a justification of the 
Revolution of 1688. The principles of that Revolution, as expounded by him, became the 
orthodox Whig doctrine. " His treatise," says Mr. Leslie Stephen, in his able " History of 
English Thought in the Eighteenth Century," " became the political bible of the following 
century." Hallam says that it opened a new era of political opinion in Europe, and that 
the theory there propounded has been fertile of great revolutions and perhaps pregnant 
with more. 

From the beginning of their dispute with England, the colonists found themselves fully 
sustained by the great Whig philosopher. What could be more acceptable than the doctrine 
that a people are absolved from obedience when illegal attempts are made upon their liber- 
ties, and that it is then their duty to make an appeal to heaven? When the colonies in 1776 
formed their Bills of Rights, the great authority as to those rights was Locke. The Bills 
of Rights of Massachusetts, Pennsylvania, iSIaryland, and other States set forth, almost in 
the exact language of Locke, that " all government of right originates from the people, is 
founded in compact only, and instituted solely for the good of the whole." 

The Declaration of Independence, which has long ago been apotheosized, did not escape 
contemporary criticism. Adams said that it was a commonplace compilation. Richard 
Henry Lee charged that it was copied from Locke's treatise on Government. To this 
charge it is certainly open. All those truth-s which the Declaration holds to be self-evident 
are set forth with just as much clearness and force in Locke's treatise. (IV. T. Brantly, 
Of the Influence of European Speculation in the Formation of the Federal Constitution, 
1880, in Southern Law Review, New Series, Vol. VI, pp. 352-353.) 

The doctrine of ithe equality of all men, which is so striking in the Declaration, was 
accepted without controversy. This acquiescence was partly due to the condition of the 
country as a settlement in a wilderness. Before the Revolution, a common characteristic of 
all the colonies was the essential equality of the people. It is sometimes said, however, 
that we derived the doctrine of the equality of mankind from a French source. Sir Henry 
Maine observes, in his " Ancient Law," that the opinions then fashionable in France 
led Jefferson to join what he denominates the specially French assumption, that all men 
are born equal, with the assumption, more familiar to Englishmen, that all men are born 
free. Mr. Morley, in the Fortnightly Review for October, 1879, declares that "nobody 
who has examined so much as the surface of the question would dream of denying that the 
French theories of society played an important part in the preparation of American in- 
dependence." {W. T. Brantly, Of the Influence of European Speculation in the Formation 
of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol VI. pp. 
353-354-) 

It is true that Jefferson afterwards "'drank a deep draught from the intoxicating cup 
of the French Revolution," but we do not think that in 1776 he had felt the French 
political influence. He was, we know, a student of Locke, and Locke asserted the natural 
equality of man as strongly as his natural liberty. In Jefferson's original draft of the 
Declaration, now in the State Department, we see that he first wrote "all men are created 
equal and independent," and afterwards erased the words "and independent." In the 
second chapter of the " Treatise on Government," Locke says : " To understand political 
power aright, we must understand what state men are naturally in, and that is a state 
of perfect freedom. ... A state also of equality. ... In the state of nature, men are all 
equal and independent,"— -^e. very phrase first employed by Jefferson. {W. T. Brantly, 



INDEPENDENCE DECLARED 21 

Of the Influence of European Speculation in the Formation of the Federal Constitution, 
1880, in Southern Law Review, New Series, Vol. VI. p. 354.) 

The Declaration of Independence is singularly suggestive of the Virginia Bill of Rights 
which was adopted on June 12, 1776. They are both streams from the same prolific foun- 
tain. The first article of the Virginia Bill declares, "that all men are by nature equally 
free and independent, and have certain inherent rights the which, when thej' enter into 
a state of society, they cannot, by any compact, deprive or divest their posterity, — namely, 
the enJ03rment of life and liberty with the means of acquiring and possessing property 
and pursuing and obtaining happiness and safety." The Virginia Bill was the work of 
George Mason, a man deeply versed in English parliamentary history, but who was not 
indebted for any of his opinions to French literary men. (IV. T. Brantly, Of the Influence 
of European Speculation in the Formation of the Federal Constitution, 1880, in Southern 
Laiv Revieiv, New Series, Vol. VI. p. 354.) 

The origin of the idea of a state of nature wherein all men are equal has been traced to 
the Roman lawyers. Locke recehed it from Hobbes and Grotius. But it was so stamped 
with the authority of the Whig philosopher that it colored all the political thinking of the 
last century in America. The conception of man as the signatary of a social compact is 
an absurd one, and has long since fallen into disrepute with the best thinkers. Hume's 
refutation of the theory is complete, but it is not without advocates at the present day. Sir 
Henry Maine is astonished at the extraordinary vitality of this speculative error. The 
circumstance that the Bills of Rights of so many of these States continue to assert in 
terms that all government is founded in compact, may serve to show us that the value 
of a sonorous maxim in politics is not proportioned to its credit with philosophers. (W. T. 
Brantly, Of the Influence of European Speculation in the Formation of the Federal Con- 
stitution, 1880, in Southern Law Review, New Series, Vol. VI. pp. 337-358.) 

That there were thirteen colonies, with separate governments in each, without any control 
by one over another, is admitted ; that they assembled by different representations ; that they 
voted, acted, and signed the declaration by their separate delegates, is apparent on the 
journals of congress, and the face of the paper. The members who assembled as the 
delegates of colonies, were the same. who. as the representatives of the states, made the 
declaration in the name, and by the authority of the good people of these colonies ; which 
was : — " That these united colonies are. and of right ought to be, free and independent states." 
(Mr. lustice Baldzcin, A General View of the Origin and Nature of the Constitution 
and Government of the United States, 1837, p. 78.) 



CHAPTER II 



INDEPENDENCE DECLARED 



The Funda- 
mental Right 



Colonial 
View 



Imperial 
View 



On July 4, 1776, the representatives of the United States of America in 
Congress assembled proclaimed their independence in a declaration setting 
forth the right and the duty of all peoples to organize themselves into nations, 
with governments of their own choice, to change those forms of government 
when they have not subserved the purpose for which they were created by 
the peoples, and submitted facts to a candid world justifying the Declaration 
of Independence in their particular case. With the facts submitted by the 
Congress to a candid world we are not here concerned. We are, however, 
concerned with the right to set up a government for themselves, which the 
signers of the Declaration asserted, claimed and exercised. For, if the right 
exist, its exercise becomes a matter of expediency, and the facts merely the 
cause or pretext of its exercise by peoples bent on exercising the right. 

Before dealing with this matter, it is advisable to advert to the state of 
things which produced the Declaration and called into being the United States 
of America. The thirteen American colonies forming the original thirteen 
United States and extending from Florida, on the south, to Canada, on the 
north, were either settled originally by British subjects or had passed into the 
possession of Great Britain. These colonies, whether under a charter such as 
Connecticut ; under a charter to a proprietor as in the case of Maryland ; or 
governed directly as a province by the crown as Virginia, claimed the right 
of local self-government b^ means of assemblies of their own choice ; for, to 
quote Sir John Seeley, " assemblies were not formally instituted, but grew up 
of themselves, because it was the nature of Englishmen to assemble." ^ 
Recognizing themselves as subjects of the mother country, provided such 
regulation was external and they were left to settle their internal affairs as 
seemed to them to be just in view of local conditions, with which they were 
familiar and of which they felt that the mother country was not cognizant, 
naturally, the colonists looked at their relations with the mother country from 
the colonial point of view. The recognition that there was a mother country 
implied another point of view, which did in fact exist. 

Great Britain held that the colonists were British subjects and possessed 
of the rights and liberties of such; that the colonists could have no greater 
rights than British subjects, and that, as such, they were subject to the Crown, 
the Parliament, or both, as were their fellow-countrN^men of Great Britain; 
that the colonies were, as trading companies and bodies politic, entitled to 

1 Sir John Robert Seeley, The Expansion of England, 1883, p. 67. 



INDEPENDENCE DECLARED 23 

make laws within the charter but not ultra vires, and therefore subordinated 
to the law and the control of their creator ; that, as colonists, they were subject 
to the burdens of the empire, as were their fellow-countrymen at home, and 
as colonies they were subject to regulation and control, internal as well as 
external; that the nature an-d extent of the duties to be imposed upon the 
colonists and the 'supervision and control of the colonies were matters of 
expediency, to be determined by the King, Lords and Commons of Great 
Britain, the supreme authority in all matters domestic, colonial, foreign. As 
was natural, the mother country looked upon its relations with the colonies 
from the standpoint of the empire. 

The colonists, if a-dmitting these rights in point of law, were unwilling to 
allow the mother country to exercise them in fact or to determine the matter 
of expediency. The mother country, possessing the rights, was unwilling to 
allow the colonists to determine the expediency of their exercise. There was 
no indifferent party to which the colonists could, or to which the mother coun- 
try would, submit their differences. Each, therefore, appealed eventually to 
the arbitrament of the sword. 

To obviate the resort to force which lurked in the background, the colonists 
petitioned the Crown, the Parliament and the people of Great Britain for a 
redress of grievances, and, conscious that the cause of each was the cause of 
every colony, a congress of their delegates assembled in 1774, in Philadelphia, 
just as Plutchinson happily said that, in 1619, " a house of burgesses broke 
out in Virginia." This assembly, extending beyond the confines of a colony coiJgres's""'*' 
and affecting the destinies of a continent, they aptly called a Continental Con- 
gress, and the first of these bodies, composed of representatives of all the col- 
onies, with the exception of Georgia, met, in 1774, in the city of Philadelphia 
in the month of September. 

As the blow which threatened all the colonies had first fallen in Massa- 
chusetts, it was natural that that province should have taken the initiative. 
Therefore, on June 17, 1774, one year to a day before the battle of Bunker 
Hill, the Massachusetts House of Representatives, under the leadership of 
Samuel Adams, resolved : 

That a meeting of Committees from the several Colonies on this Continent 
is highly expedient and necessary, to consult upon the present state of the 
Colonies, and the miseries to which they are and must be reduced by the 
operation of certain acts of Parb'ament respecting America, and to deliberate 
and determine upon wise and proper measures, to be by them recommended 
to all the Colonies, for the recovery and establishment of their just rights & 
liberties, civil & religious, and the restoration of union & harmony between 
Great Britain and the Colonies, most ardently desired by all good men. 
Therefore, Resolved, that the Hon'''''. James Bowdoin, esq""., the Hon'''®. 
Thomas Gushing, esq""., Mr. Samuel Adams, John Adams, & Robert Treat 
Paine, esq'"^, be, and they are hereby appointed a Committee on the part of 
this province, for the purposes aforesaid, any three of whom to be a quorum, 
to meet such committees or delegates from the other Colonies as have been or 



24 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

may be appointed, either by their respective houses of Burgesses, or represen- 
tatives, or by convention, or by the committees of correspondence appointed 
by the respective houses of Assembly, in the city of Philadelphia, or any 
other place that shall be judged most suitable by the Committee, on the first 
day of September next; & that the Speaker of the House be directed, in a 
letter to the speakers of the houses of Burgesses or representatives in the 
several Colonies, to inform them of the substance of these Resolves.^ 

On September 5th the delegates of all but three colonies met. On the 14th 
those of North Carolina appeared. The Congress organized with Peyton 
Randolph, of Virginia, as President. On September 7th a committee, consist- 
ing of two members from each colony, was appointed " to State the rights of 
the Colonies in general, the several instances in which those rights are violated 
or infringed, and the means most proper to be pursued for obtaining a restora- 
tion of them." And it was decided " that the Congress do confine themselves, 
at present, to the consideration of such rights only as have been infringed by 
acts of the British parliament since the year 1763." ^ 

In this the colonists were well advised, for 1763 marked an epoch in the 
relations between America and Great Britain. Before that date the colonies 
had been looked upon as separate and distinct plantations, to be protected, 
if need be, against the aggression of France from the north in Canada and the 
west in Louisiana. The conquest of Canada, in which the colonies partici- 
pated, and its cession by the treaty of 1763 to Great Britain, the cession of 
Louisiana to Spain and the recognition of the Mississippi as the boundary, 
caused the Crown and its advisers, apparently for the first time, to consider 
the colonies as a unit and to govern them as such, and, in pursuance of this 
policy, to pass the various statutes whereof the colonists complained. 
Hon'ind They therefore adopted a declaration. On October 14th a report on the 

Resolves rights and grievances of the colonies was adopted, known as the Declaration 

and Resolves of the First Continental Congress.^ 

The declaration consists of eleven resolutions framed by representatives of 
" the good people of the several Colonies " with the exception of Georgia 
which, however, was later to be represented in the Congress. The first ten 
of the resolutions state the rights of the colonies as their respective representa- 
tives believed them to be on the eve of the Revolution, and the eleventh is an 
enumeration of the acts of parliament which they considered to be inconsist- 
ent with the declaration of rights and which therefore should be repealed " in 
order to. restore harmony between Great Britain and the American colonies." 
The preamble asserts that Parliament has claimed " a power of right to bind 
the people of America, by statute in all cases whatsoever," that Parliament 

^Journals of the Continental Congress (1904 — ), Vol. i, pp. 15-16. For documents and 
correspondence relating to proceedings of the Continental Congress and the Colonial Con- 
gresses, see also Force's American Archives, Fourth Series, 1837. 

2 Ibid., p. 42. 

3 Ibid., pp. 63-73. 



K INDEPENDENCE DECLARED 25 

had " in some acts expressly imposed taxes on them," and that ParHament 
" under various pretences, but in fact for the purpose of raising a revenue," 
had " imposed rates and duties payable in these colonies." Because of this 
action on the part of Great Britain, the colonies deemed it essential to set 
forth their rights in the premises. Therefore they declared : 

That they were " entitled to life, liberty, & property," and that they had 
never renounced the right to dispose thereof to any foreign power without 
tfleir consent ; 

That their ancestors were, at the time of their emigration, " entitled to 
all the rights, Hberties, and immunities of free and natural-born subjects, 
within the realm of England; " 

That these rights were not lost by emigration and that their descendants 
were therefore " entitled to the exercise and enjoyment of all such of them, 
as their local and other circumstances enable them to exercise and enjoy; " 

That the inhabitants of the colonies could not, because of local conditions, 
be properly represented in Parliament, but only in their local legislatures, 
where by their representatives, they consented to taxation; recognizing, how- 
ever, the right of the British Parliament to regulate their " external com- 
merce, for the purpose of securing the commercial advantages of the whole 
empire to the mother country, and the commercial benefits of its respective 
members; excluding every idea of taxation, internal or external, for raising 
a revenue on the subjects, in America, without their consent; " 

That the colonies were entitled " to the common law of England," and 
more especially to the " inestimable privilege " of trial by jury; 

That they were " entitled to the benefits of such of the English statutes 
as existed at the time of their colonization," and which had been found ap- 
plicable to local conditions ; 

That they were entitled to " all the immunities and privileges granted & 
confirmed to them by royal charters, or secured by their several codes of 
provincial laws ; " 

That they possessed the right, and without restraint, peaceablv to assemble, 
to consider their grievances, and to petition the king for a redress thereof ; 

That the maintenance of a standing army in the colonies in times of peace 
without the consent of the colonial legislatures was against law; 

That the branches of the legislature should be independent of each other; 
and therefore that the exercise of legislative power by a council appointed by 
the Crown and serving during its pleasure, " is unconstitutional, dangerous, 
and destructive to the freedom of American legislation ; " 

And finally, that these " their indubitable rights and liberties " could not 
be " legally taken from them, altered or abridged by any power whatever, 
without their own consent, by their representatives in their several provincial 
legislatures." 



26 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

This document, which would have justified in itself the call and the meet- 
ing of the Congress, does not, however, stand alone ; for the representatives 
of the colonies did not content themselves with a statement of grievances but 
considered " the means most proper to be used for the restoration " of colonial 
rights. 

Sharing, no doubt, the view of John Adams that the various Navigation 
Acts and Acts of Trade were the cause of strained relations leading in the 
end to revolution, the members of Congress were of the opinion that " a Non- 
Importation, Non-Consumption, and Non-Exportation Agreement, faithfully- 
adhered to," would prove " the most speedy, efifectual, and peaceable measure." 
Therefore a report, advocating an association to cut off all trade between 
the colonies, Great Britain and its other possessions, was reported on the 
12th, agreed to on the 18th and signed on October 20, 1774, by fifty-three 
members of the Congress, by which they solemnly bound themselves and their 
constituents to adhere to the Association until the grievances whereof they 
complained were redressed ; and they recommended it " to the provincial con- 
ventions, and to the committees in the respective colonies, to establish such 
farther regulations as they may think proper, for carrying into execution this 
association." ^ Whereupon, the Congress adjourned on October 26th, hav- 
ing invited all the colonies to send delegates to another Congress, to meet on 
the 10th day of May, 1775, unless their grievances had been redressed in the 
meantime. 

It is to be observed that, although no union, an association of the colonies 
was formed which was rapidly to develop into a union in law as well as in 
fact. On April 19, 1775, the British forces in Boston deemed it advisable to 
seize and destroy some powder magazines at Concord in the province of Massa- 
chusetts. The intention of the British commander became known and, when 
his troops entered the little town of Lexington at day-break, on the way to 
Concord, they found drawn up a small body of provincials, which they quickly 
dispersed and continued their march to Concord, where they indeed effected 
their purpose, but found larger bodies of provincials drawn up to resist them. 
Blood had been drawn at Lexington; it was freely shed at Concord, and be- 
fore " the embattled farmers " the British troops hurriedly fell back to avoid 
the capture which threatened them. 

When, therefore, the second Continental Congress met in Philadelphia on 
May 10, 1775, it was composed of representatives of all the thirteen colonies 
including those of Georgia, which by this time had made up its mind to cast 
its lot with the other colonies. Peyton Randolph was again elected President, 
but, absenting himself in Virginia to attend to matters of the province, he was, 
on May 24, 1775, succeeded by John Hancock of Massachusetts. 

Finding themselves in the midst of war, the colonies in Congress accepted 

1 Journals of the Continental Congress, Vol. i, p. 80. 



INDEPENDENCE DECLARED 



27 



the gauge of battle by electing on June 15th, by unanimous ballot, one of their 
members, George Washington, to be commander-in-chief of the armies raised 
and to be raised in order that " the liberties of the country receive no detri- 
ment." ^ 

The Congress, recognizing the importance of this action, adopted on July Dedii-atioa 
6, 1775, a carefully prepared and moderate " Declaration of the Causes and petition 
Necessity of Taking up Arms," which was " to be published by General Wash- 
ington upon his arrival at the camp before Boston," in which city the British 
army was then besieged by the provincial troops and volunteers already pour- 
ing in from the adjoining colonies. At the same time, every effort was made 
by the Congress to effect a reconciliation with the mother country, and the 
declaration of the 6th was accompanied on the 8th by a petition to the King, 
each drafted by the patriotic yet cautious and conciliatory Dickinson. 

In the interval between the first and second Congress, Lord North, then 
Prime Minister of Great Britain, held out the olive branch in the form of a 
Conciliatory Resolution of February 27, 1775, by the terms of which the 
Imperial Parliament declared its intention to abstain from internal taxation, 
and only to regulate commerce, provided each colony or province should con- 
tribute its portion " to the common defence," and " engage to make provi- 
sion also for the support of the Civil Government, and the Administration of 
Justice, in such Province or Colony." ^ The conciliatory act was meant to be 
a concession, not a surrender, and it was shortly followed by the New Eng- 
land Restraining Act of March 30, 1775, cutting off all trade between the 

1 On June 16, 1775 

The president from the chair informed Geo: Washington esq^ that he had the order of 
the Congress to acq[ain]t him, that the Congress had by a unanimous vote made choice of 
him to be general and commander in chief to take the supreme command of the forces raised 
and to be raised, in defence of American Liberty, and desired his acceptance of it. Where- 
upon Colonel Washington, standing in his place, spoke as follows : 

" Mr. President, 

" Tho' I am truly sensible of the high Honour done me, in this Appointment, yet I feel 
great distress, from a consciousness that my abilities and military experience may not be 
equal to the extensive and important Trust : However, as the Congress desire it, I will 
enter upon the momentous duty, and exert every power I possess in their service, and for 
support of the glorious cause. I beg they will accept my most cordial thanks for this dis- 
tinguished testimony of their approbation. 

" But, lest some unlucky event should happen, unfavourable to my reputation, I beg it 
may be remembered, by every gentleman in the room, that I, this dav, declare, with the utmost 
sincerity, I do not think myself equal to the Command I am honored with. . . ." Journals, 
Vol. ii, pp. 91-2. 

On June 26th the New York Provincial Congress submitted an address to General Wash- 
ington expressing satisfaction at his appointment. In the course of his reply he said : 

" May your warmest wishes be realized in the success of America at this important and 
interesting period; and be assured that every exertion of my worthy colleagues and myself 
will be equally extended to the reestablishment of peace and harmony between the Mother 
Country and these Colonies, as to the fatal but necessary operations of war. When we as- 
sumed the soldier we did not lay aside the citizen; and we shall most sincerely rejoice with 
you in that happy hour when the establishment of American liberty, on the most firm and 
solid foundations, shall enable us to return to our private stations in the bosom of a free, 
peaceful, and happy Country." See Journal of New York Provir.cial Congress for June 26, 
1775. Here reprinted from American Arcliizrs, Fourth Series, 1839, Vol. 2, p. 1322. 

s Archives, Fourth Series, 1837, Vol. 1, p. 1611. 



28 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

colonies and foreign countries and restraining their trade to Great Britain. 
In April the southern colonies were likewise restrained, and these various 
measures were later superseded by the general act of December 22, 1775, pro- 
hibiting trade and intercourse with America. 

On July 31, 1775, the Congress, in a report written by Thomas Jefferson, 
rejected Lord North's conciliatory resolution, which had been laid before that 
body in the month of May, 1775. On its part, Great Britain was not slow to 
take action. The battles of Lexington and Concord on April 19th and of 
Bunker Hill on June 17th, between British troops and the colonists, and the 
appointment of Washington as commander-in-chief, likewise convinced the 
British Government that war was on, and on August 23, 1775, it issued a 
proclamation of rebellion appropriate!)^ ending with " God Save the King." 
The resort was indeed made to conciliation, but the appeal had already been 
made to the sword. Too late for the American colonies on the Continent, it 
was not too late to save the other colonies which Great Britain then had or has 
since acquired, and which are now self-supporting dominions proud of their 
connection with the mother country. This was the famous Taxation of Colo- 
nies Act (18 Geo. Ill, c. 12) providing that Parliament " will not impose any 
duty, tax, or assessment whatever, payable in any of his Majesty's colonies, 
provinces, and plantations in North America or the West Indies ; except only 
such duties as it may be expedient to impose for the regulation of commerce ; 
the net produce of such duties to be always paid and applied to and for the use 
of the colony, province, or plantation, in which the same shall be respectively 
levied, in such manner as other duties collected by the authority of the re- 
spective general courts, or general assemblies, of such colonies, provinces, or 
plantations, are ordinarily paid and applied." Upon this act, caused by the 
revolt of the American colonies and the attitude of Great Britain toward its 
colonies of today, a competent British authority says : " This renunciation 
by the Imperial Parliament of the right to impose taxes upon a colony, whether 
a self-governing colony or not, has passed through two stages. Since 1783 
taxation imposed by an Imperial Act has always been, even in the case of a 
Crown colony, imposed for the benefit of the colony, and the proceeds thereof 
have been paid to the colony. But until the repeal of the Navigation Laws in 
1849 Parliament, in support of our whole navigation system, retained the 
practice of imposing duties on goods imported into the colonies, though the 
proceeds thereof were paid to the colonies so taxed. Since 1849 no Imperial 
Act has been passed for the taxation of any colony, and no colony is compelled 
by the Imperial Parliament to contribute anything in the way of taxation 
towards the cost of the government of the United Kingdom or towards the 
defence of the British Empire." ^ 

No answer other than this proclamation and the prohibition of trade and 
1 Albert Venn Dicey, Law of the Constitution, 1915 ed., p. xxvi, Note 2, 



INDEPENDENCE DECLARED 29 

intercourse with America was made to the petition of Congress of July 8, 
1775 — consequently, the last offer of reconciliation made by Congress. The 
members of that famous body were confronted with prudent submission or 
armed resistance. The question of independence forced itself upon them and Notion 
the succeeding months were devoted to its consideration, and certain steps pendenc 
taken before its declaration, which presupposed its adoption. Thus, on No- 
vember 3, 1775, within four days of the news of the rejection of the petition 
to the King, the Congress recommended the Provincial Convention of New 
Hampshire " to call a full and free representation of the people, and that the 
representatives, if they think it necessary, establish such a form of govern- 
ment as, in their judgment, will best produce the happiness of the people, and 
most effectually secure peace and good order in the province, during the con- 
tinuance of the present dispute between G[reat] Britain and the colonies." ^ 
And on May 15, 1776, the Congress, taking general action, resolved " That it 
be recommended to the respective assemblies and conventions of the United 
Colonies, where no government sufficient to the exigencies of their affairs 
have been hitherto established, to adopt such government as shall, in the 
opinion of the representatives of the people, best conduce to the happiness and 
safety of their constituents in particular, and America in general." ^ 

There was but one further step to take, as the Congress then thought and Jh^«^ 
as we today see, and that step was finally taken on July 4, 1776. Therefore. ^'^^ 
by way of preparation, Richard Henry Lee, on behalf of the delegates from 
Virginia, made the following motion on June 7th : 

That these United Colonies are, and of right ought to be, free and in- 
dependent States, that they are absolved from all allegiance to the British 
Crown, and that all political connection between them and the State of Great 
Britain is, and ought to be, totally dissolved. 

That it is expedient forthwith to take the most effectual measures for 
forming foreign Alliances. 

That a plan of confederation be prepared and transmitted to the respective 
Colonies for their consideration and approbation.* 

This motion, appropriately made by Mr. Lee on behalf of the leading southern 
colony, was appropriately seconded by John Adams of the northern colony 
of Massachusetts. George Washington, of Virginia, had been appointed com- 
mander-in-chief upon motion of Maryland, seconded by John Adams of 
Massachusetts. The committee to draft the Declaration of Independence had 
as its chairman Thomas Jefferson of the colony, by virtue of that Declara- 
tion to be the State, of Virginia, in lieu of Richard Henry Lee, absent on 
account of illness in his family, who might otherwise have presided over the 
committee and drafted its report. 

The committee, consisting of Thomas Jefferson of Virginia, John Adams 

^Journals of the Continental Congress, Vol. iii, p. 319. 
2 Ibid.. Vol. iv, p. 342. 
s Ibid., Vol. V, p. 425. 



30 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



The Dec- 
laration 
Signed 
and Pro- 
claimed 



of Massachusetts, Benjamin Franklin of Pennsylvania, Roger Sherman of 
Connecticut, and Robert R. Livingston of New York, was elected by ballot 
" to prepare a declaration to the effect of the said first resolution." On the 
28th of June the committee brought in a draft of a Declaration of Independ- 
ence, written by Thomas Jefferson with slight emendations on the part of Dr. 
Franklin and John Adams, still to be seen in their handwriting on Mr. Jeffer- 
son's manuscript. On July 2nd, Richard Henry Lee's resolution was adopted. 
On the 4th day of July the Declaration of Independence, as reported by the 
committee, was agreed to with sundry amendments ^ both of form and sub- 
stance, and signed by John Hancock as President of the Congress, by Charles 
Thompson as Secretary, and by its members on August 2nd. The Declara- 
tion was published immediately, and in fact as well as in law the independence 
of the United States dates from the 4th day of July, 1776. On this same 
eventful day the Congress directed that copies be sent " to the several assem- 
blies, conventions, and committees, or councils of safety, and to the several 
commanding officers of the continental troops ; that it be proclaimed in each 
of the United States, and at the head of the army." ^ 

The document consists of what may be called a preamble, stating the right 
of peoples to set up for themselves and to change their forms of government 
at their sovereign pleasure; of an imposing list of grievances suffered at the 
hands of George III, then King of Great Britain; and of a Declaration of 
Independence, based upon the right in behalf of the colonies asserted in the 
preamble and justified by the enumeration of grievances set forth in the body 
of the instrument, " to assume, among the Powers of the earth, the separate 
and equal station to which the Laws of Nature and of Nature's God entitle 
them; " and " for the support of this Declaration, with a firm reliance upon the 
protection of divine Providence," the delegates of the erstwhile colonies, speak- 



1 For an account of the drafting of the Declaration and the amendments suggested by 
John Adams and Benjamin Franklin, see John H. Hazelton, The Declaration of Independ- 
ence—Its History, 1906, Chapter VI. 

In a letter to Mr. Madison, dated August 30, 1823, forty-seven years after "the transac- 
tions of Independence," Mr. Jefferson made the following statement: 

the committee of 5. met, no such thing as a subcommittee was proposed, but they unani- 
mously pressed on myself alone to undertake the draught. I consented; I drew it; but be- 
fore I reported it to the committee, I communicated it separately to D^. Franklin and iiir. 
Adams requesting their corrections ; because they were the two members of whose judg- 
ments and amendments I wished most to have the benefit before presenting it to the Com- 
mittee; . . . their alterations were two or three only, and merely verbal. . . . Pickering's 
observations, and fnr. Adams's in addition, ' that it contained no new ideas, that it is a com- 
mon place compilation, it's sentiments hacknied in Congress for two years before, and it's 
essence contained in Otis's pamphlet,' may all be true, of that I am not to be the judge. 
Rich<^. H. Lee charged it as copied from Locke's treatise on government. Otis's pamphlet 
I never saw, & whether I had gathered my ideas from reading or reflection I do not know. 
I know only that I turned to neither book or pamphlet while writing it. I did not consider 
it as any part of my charge to invent new ideas altogether & to offer no sentiment which 
had ever been expressed before. Hazelton, pp. 144-145. See also Ford, The Writings of 
Thomas lefterson, Vol. x, pp. 267-8. 

'^Journals of the Continental Congress, Vol. v, p. 516, 



INDEPENDENCE DECLARED 31 

ing now and the first time for the States, mutually pledged their lives, their 
fortunes, and their sacred honor. 

For present purposes it is only necessary to state and to analyze the political 
philosophy contained in the preamble and the conclusion of this remarkable 
document, which, as the historian Buckle has, as we believe, aptly said, of the Political 
Declaration as a whole, " ought to be hung up in the nursery of every king, and °^°^ ^ 
blazoned on the porch of every royal palace." ^ 

In the preamble to this most famous of American state papers, the members 
of the Second Continental Congress set forth not only the reasons which 
impelled them to separate but the rights which they believed to be inherent 
and the principles which should lie at the basis of every form of government, 
expressed in language as classic as the thought was impressive : 

When, in the Course of human events, it becomes necessary for one peo- 
ple to dissolve the political bands which have connected them with another, 
and to assume, among the Powers of the earth, the separate and equal station 
to which the Laws of Nature and of Nature's God entitle them, a decent re- 
spect to the opinions of mankind requires that they should declare the causes 
which impel them to the separation.' 

Fortunately, this language is so clear and so broad that it is understood 
today as it was then, and its application to all states and conditions of men 
is seen by us of the present day, quite as it was felt by them to be applicable to 
the thirteen United Colonies. Certain observations of a very general nature 
may, however, be apposite. 

The dissolution of the political bands connecting a people with another is 
looked upon as necessary in the course of human as distinct from divine events. 
The consequence of this dissolution is not the gathering of that people into a 
province or subordinate political community, but the creation of a power, 
separate and distinct from all other powers and possessed of an equal rank and 
station to which, according to the statesmen of that day, " the laws of Nature 
and of Nature's God entitle them." The matter is not labored or argued, it 
is merely stated, with its consequences. It was apparently felt that, although 
such action was in conformity with the laws of Nature and of Nature's God, 
it might not appear to be such to the princes and peoples of the old world. 
Therefore, " a decent respect to the opinions of mankind " suggested and re- 
quired that they should declare the causes which impelled them to separate. 
Accordingly, fitting practice to precept, they thereupon stated the causes, bas- 
ing them in the first instance upon certain principles, which they thus enumer- 
ated: 

We hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain unalienable Rights, that 
among these, are Life, Liberty, and the pursuit of Happiness. That, to se- 

1 H. T. Buckle, History of Civilization in England, Am. ed., 1857, Vol. i, p. 846. 
'^ Journals, Vol. v, p. 510. 



32 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

■cure these rights, Governments are instituted among Men, deriving their just 
Powers from the consent of the governed. That, whenever any form of 
Government becomes destructive to these ends, it is the Right of the People 
to alter or to abolish it, and to institute new Government, laying its founda- 
tion on such Principles, and organizing its Powers in such form, as to them 
shall seem most likely to effect their Safety and Happiness.^ 

By way of comment, it may be premised that the members of the Congress 
abstained from argument in laying down these truths, which, when stated, 
they proceed to apply in the form of conclusions rather than as premises to be 
proved. It is to be observed that, although convinced in their own minds, they 
are not dogmatic, inasmuch as they do not say, except by way of implication, 
that the truths they lay down are self-evident, but that they themselves 
hold them to be self-evident. In any event, they were to be self-evident in 
the New World, and the States of the New World, to be combined later into a 
more perfect Union, were to be based upon these truths. 

It is further to be observed that these rights with which men are en- 
dowed by their Creator were, in their conception, inalienable, and that life, 
liberty and the pursuit of happiness were so important as to be singled out as 
among these, not that life, liberty, and the pursuit of happiness were the only 
inalienable rights with which men were endowed by their Creator. They 
were, however, the fundamental as well as inalienable rights, because to secure 
them governments were instituted among and by men which thus received 
whatever powers they were to exercise from the consent of the governed ; the 
meaning of which seems to be as plain as words can make it, that States or 
nations do not confer powers upon the governed, but that the people com-' 
posing the State or nation confer upon the Government of that State or nation 
all the powers which it possesses, and therefore may lawfully exercise. 

In the next clause, taking note of history, it is declared that if, instead of 
securing to men the inalienable rights to life, liberty, and the pursuit of 
happiness for which governments are instituted, they have proved to be " de- 
structive of these ends," the people have the right to alter or to abolish them, 
and by implication a duty is raised to institute a new government which shall 
be based upon such principles, and its powers organized in such form as shall 
seem to the people composing the State or nation most likely " to effect their 
Safety and Happiness." 

There is assuredly here no divine right to govern wrong. The State is 
composed of men and women grouped together and it only exists for the 
convenience and security of thejpeople residing within the boundaries thereof. 
The Government of the State is for the benefit of the people, not the people 
for the benefit of the governors ; and the form of government failing to efifect 
the purpose for which the State exists, and for which the form of government 
1 Journals of the Continental Congress, Vol. v, p. 510. 






INDEPENDENCE DECLARED 33 

has been framed is to be brushed ruthlessly aside if it fail, and to be sup- 
planted by one having a better chance of pleasing the individuals taken to- 
gether, in whom the sovereignty, elsewhere attributed to the State or nation, 
resides. 

Such was the American conception then, such is the American conception 
today, of the origin of their government and the purpose of government in 
general. Because of the principles laid down in the preamble, and the griev- 
ances specifically stated in the document, the Declaration thus draws in meas- 
ured and unanswerable terms the consequences of one and the other: 

We, therefore, the Representatives of the United States of America, in 
General Congress assembled, appealing to the Supreme Judge of the World 
for the rectitude of our intentions, do, in the Name, and by Authority of the 
good People of these Colonies, solemnly publish and declare, That these 
United Colonies are, and of Right, ought to be Free and Independent States ; 
that they are Absolved from all Allegiance to the British Crown, and that all 
political connetion between them and the State of Great Britain, is and ought 
to be totally dissolved ; and that, as Free and Independent States, they have 
full Power to levy War, conclude Peace, contract Alliances, establish Com- 
merce, and to do all other Acts and Things which Independent States may 
of right do. And for the support of this Declaration, with a firm reliance 
on the Protection of Divine Providence, we mutually pledge to each other our 
Lives, our Fortunes and our sacred honour.^ 

Because of these premises and conclusions, the people of the Colonies, by their 
representatives in Congress assembled, declared the Colonies to be free and 
independent States, absolving them from allegiance to the British Crown and 
dissolving the political connection between them and the State of Great Brit- 
ain, apparently applying the word " State " to Great Britain and erstwhile 
colony with a like significance. And the free and independent States, no 
longer spoken of as united or in union, are declared to have " full power to 
levy War, conclude Peace, contract Alliances, establish Commerce, and to do 
all other Acts and Things which Independent States may of right do." 

The immediate and the proximate results of this Declaration on the part clTrT^pVion 
of the Congress, drafted in faultless language by Jefferson, are thus stated by 
James Monroe, a younger contemporary, destined to be an illustrious suc- 
cessor of Jefferson in the Presidency : 

The first is that in wresting the power, or what is called the sovereignty, 
from the Crown it passed directly to the people. The second, that it passed 
directly to the people of each Colony and not to the people of all the Colonies 
in the aggregate ; to thirteen distinct communities and not to one. To these 
two facts, each contributing its equal proportion, I am inclined to think that 
we are in an eminent degree indebted for the success of our Revolution. - 

1 Journals, Vol. v, p. 514. 

2 Views of the Presidents of the United States on the Subject of Internal Improvements 
— Stanislaus Murray Hamilton, The IVritiiigs of James Monroe, 1902, Vol. 6, p. 224. See 
also James D. Richardson, Compilation of the Messages and Papers of the President'; 
1789-1897 (1896), Vol. 2, p. 149. 



of the 
Results 



Politic 



34 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

And yet, although the colonies were declared by this instrument to be free 
and independent States, or thirteen distinct communities, in Monroe's gloss, 
they nevertheless may be considered by the agreement of association or by 
the Declaration of Independence, or by their mere association, without the 
t^j" agreement of 1774 or the Declaration of 1776, to form a body politic, as 

they were expressly held to be by a signer of the Declaration of Independence, 
in the case of Respublica v. Sweers (1 Dallas, 41), decided in the Supreme 
Court of Pennsylvania in 1779, approximately two years before the Articles 
of Confederation, making of them a perpetual Union, had gone into effect. 

The facts of this case are very interesting, in that one Cornelius Sweers, 
a deputy Commissary-General of Military Stores in the armies of the United 
States of America, was indicted in a Pennsylvania court held in Philadelphia, 
— because the United States did not then possess courts of their own, — in 
November, 1778, for forgery upon two bills with intent to defraud the United 
States. On the 14th of April, 1779, he was convicted upon both indictments, 
and five days later the exceptions taken by his counsel were overruled and 
sentence pronounced by the court. Mr. Chief Justice McKean said, in over- 
ruling the exceptions to the form and substance of these indictments, and in 
sentencing the defendant, convicted upon both of them : 

The -first exception was, " that, at the time of the offence charged, the 
United States were not a body corporate known in law." But the Court are 
of a different opinion. From the moment of their association, the United 
States necessarily became a body corporate ; for, there was no superior from 
whom that character could otherwise be derived. In England, the king, lords, 
and commons, are certainly a body corporate; and yet there never was any 
charter or statute, by which they were expressly so created. 

After examining certain technicalities of pleading, immaterial to the matter 
in hand, the Chief Justice thus continued : 

Upon the whole, we are of opinion, that your conviction has been legal, 
as well as just; and, therefore, it only remains to pronounce the sentence of 
the court. 

The sentence, alike important and interesting both to the defendant and to 
the reader, is happily expressed in terms of the independence of the United 
States : 

Sentence, on the first indictment: — A fine of £70 and imprisonment un- 
til the 4th of July, the anniversary of American Independence. 

Sentence, on the second indictment: — A fine of il020 and imprisonment 
until the next annual election for Petmsyhania, and standing in the pillory 
for one hour. 

8n[ ^AU ^""^ Reverting to the second of the three resolutions introduced by Richard 

Henry Lee on June 7, 1776, " that it is expedient forthwith to take the most 
effectual measures for forming foreign Alliances," it is sufficient to say, in 
this connection, that a committee of five was chosen on the 12th in order to 



INDEPENDENCE DECLAIMED 35 

prepare a plan of treaties to be proposed to foreign powers, and that Ben- 
jamin Franklin, a member of the committee on the Declaration of Independ- 
ence, was, by the Congress, sent as our first minister to France, with which 
country he negotiated, on February 6, 1778, in conjunction with Silas Dean 
and Arthur Lee, an offensive and defensive treaty of alliance, by virtue of 
which France came to the aid of the United States, resulting in the acquisi- 
tion of independence of the Colonies then, and today in the cooperation of 
the armies of these United States upon French soil to preserve inviolate the 
independence of our first and our only ally. 

It could be shown, if time and space permitted, that the ideas and the 
language of the Declaration of Independence came from English philosophers, 
from Hooker to Locke; that every important phase of the preamble is to be 
found in one form or another in Locke's two discourses on Civil Govern- 
ment; and that, indeed, the important phrases of the preamble can be found 
in Locke's exact language. 

But admitting that to be so, it does not detract from the importance of the 
document, because Locke spoke as an individual, justifying the Revolution 
of 1688, whereas the Congress spoke as a political body making the Revolu- 
tion of 1776. And it is believed that the Second Continental Congress is the 
first parliament, legislature, or congress that ever adopted and proclaimed 
these doctrines, and that the United States is the first country which ever 
put them into effect in the form in which they were stated. 

The doctrines are in truth the doctrines of English liberty. They are not, 
as has been so often asserted, the doctrines of Rousseau. At least, they were 
not borrowed from him, and if they are to be found in Rousseau's Social 
Contract, they were taken from Locke, as Rousseau is known to have drawn 
heavily upon Locke for this little work. 

The supposed influence of Rousseau is perhaps best stated by two careful 
and thoughtful investigators and writers. Thus, Sir Henry Sumner Maine 
says in his Ancient Law: 

The American lawyers of the time, and particularly those of ^^irginia, 
appear to have possessed a stock of knowledge which differed chiefly from 
that of their English contemporaries in including much which could only 
have been derived from the legal literature of continental Europe. A very 
few glances at the writings of Jeft'erson will show how strongly his mind was 
affected by the semi-juridical, semi-popular opinions which were fashionable 
in France, and we cannot doubt that it was sympathy with the peculiar ideas 
of the French jurists which led him and the other colonial lawyers who guided 
the course of events in America to join the specially French assumption that 
" all men are born equal " with the assumption, more familiar to Englishmen, 
that all men are born free, in the very first lines of their Declaration of In- 
dependence. The passage was one of great importance to the history of the 
doctrine before us. The American lawyers, in thus prominently and em- 
phatically affirming the fundamental equality of human beings, gave an im- 
pulse to political movements in their own country, and in a less degree in 



36 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Great Britain, which is far from having yet spent itself ; but beside this they 
returned the dogma they had adopted to its home in France, endowed with 
vastly greater energy and enjoying much greater claims on general reception 
and respect.^ 

In speaking of the influence of Rousseau and his followers, John Motley 
said, in his life of Rousseau, first published in 1873, that: 

It was that influence which, though it certainly did not produce, yet did 
as certainly give a deep and remarkable bias, first to the American Revolu- 
tion, and a dozen years afterwards to the French Revolution.^ 

In The Fortnightly Review for 1879, Mr. Morley, returning to the subject, 
declared that : 

Nobody, however, who has examined so much as the mere surface of 
the question, would now dream of denying that the French theories of 
society played an important part in the preparation of American independ- 
ence.^ 

As a colonist, Jefferson was, in his earlier days, influenced by English 
liberal writers, for the purpose of the colonists was to show that as English- 
men they were entitled to English liberty as laid down in English writers of 
repute. The Declaration of Independence naturally and necessarily embodied 
the views and the conception of government upon which the colonists had 
made their stand. 

As a statesman, and especially after his return from France, where he 
succeeded Franklin as American Minister, Jefferson may, indeed, have been 
influenced by French ideas and conceptions.^ 

For the body of his countrymen who had not visited, much less resided in 
France, the French philosophers came with the French troops to America, 
and remained after the French Army departed, having accomplished its pur- 
pose at Yorktown. It is believed that in the matter of philosophy and demo- 
cratic doctrine, they returned with more than they brought. 

1 Sir Henry Sumner Maine, Ancient Law, 10th Edition, 1884. pp. 91-92. In a note to this 
passage, published in his edition of Ancient Law, p. 409, Sir Frederick Pollock thus states 
what is believed to be the correct and the prevailing views on this subject: 

" This is not the place to speak at large of Rousseau's influence on the founders of Ameri- 
can independence and the leaders of the French Revolution ■. but the careful research of 
American scholars has lately shown that the Principles of 1789 owed more to the American 
Declaration of Independence and the earlier Bills of Rights of several States than we used to 
suppose, and less to Rousseau, and that the language of the American constitutional instru- 
ments proceeded from the school not of Rousseau but of Locke." (Scherger, The Evolution 
of Modern Liberty, New York. 1904). 

2 John Morley, Rousseau, 1873, Vol. 1, p. 188. 

3 J'ohn Morley, A Word with Some Critics, The Fortnightly Reviezv, October, 1879, p. 584. 
*It is true that Jefferson afterwards "drank a deep draught from the intoxicating cup 

of the French Revolution," but we do not think that in 1776 he had ielt the French political 
influence. He was, we know, a student of Locke, and Locke asserted the natural equality 
of man as strongly as his natural liberty. (W. T. Brantly, Of the Influence of European 
Speculation in the Formation of the Federal Constitution, i88o. Southern Law Review, 
New Series, Vol. VI, p. 334.) 




Ill 

A CONFEDERATION OF SOVEREIGN STATES 

As preliminary to the very able discussions of the constitution, which we have heard 
from the bar, and as having some influence on its construction, reference has been made 
to the political situation of these states, anterior to its formation. It has been said, that 
they were sovereign, were completely independent, and were connected with each other 
only hy a league. This is true. (Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton, 
I, 187, decided in 1824.) 

In June 1776, the Convention of Virginia formally declared, that Virginia was a free, 
sovereign, _and independent state; and on the 4th of July. 1776, following, the United States, 
in Congress assembled, declared the Thirteen United Colonics free and independent states; 
and that as such, they had full power to levy war, conclude peace, &c. I consider this as 
a declaration, not that the United Colonies jointly, in a collective capacity, were independent 
states, &c. but that each of them was a sovereign and independent state, that is, that each 
of them had a right to govern itself by its own authority, and its own laws, without any 
controul from any other power upon earth. 

Before these solemn acts of separation from the Crown of Great Britain, the war between 
Great Britain and the United Colonies, jointly, and separately, was a civil war; but 
instantly, on that great and ever memorable event, the war changed its nature, and became 
a PUBLIC war between independent governments; and immediately thereupon all the 
rights of public war (and all the other rights of an independent nation) attached to the 
government of Virginia; and all the former political connexion between Great Britain and 
Virginia, and also between their respective subjects, were totally dissolved; and not only 
the two nations, but all the subjects of each, were in a state of war; precisely as in the 
present war between Great Britain and France. Vatt. lib. 3. c. 18. s. 292, 295. lib. 3. c. 5, 
s. 70, 72, and 73- 

From the 4th of July, 1776, the American States were de facto, as well as de jure, in the 
possession and actual exercise of all the rights of independent governments. On the 6th 
of February, 1778, the King of France entered into a treaty of alliance with the United 
States; and on the 8th of Oct. 1782, a treaty of Amity and Commerce was concluded 
between the United States and the States General of the United Provinces. I have 
ever considered it as the established doctrine of the United States, that their independence 
originated from, and commenced with, the declaration of Congress, on the 4th of July. 
1776; and that no other period can be fixed on for its commencement: and that all laws 
made by the legislatures of the several states, after the declaration of independence, were 
the laws of sovereign and independent governments. (Mr. Justice Chase in Ware v. Hylton, 
2 Dallas 199, pp. 224-225, decided in 1796.') 

The court entertains no doubt that after the 4th of October 1776, he became a member 
of the new society, entitled to the protection of its government, and bound to that govern- 
ment by the ties of alle.giance. 

This opinion is predicated upon a principle which is believed to be undeniable, that the 
several states which composed this Union, so far at least as regarded their municipal 
regulations, became entitled, from the tmie when they declared themselves independent, to 
all the rights and powers of sovereign states, and that they did not derive them from 
concessions made by the British king. The treaty of peace contains a recognition of their 
independence, not a grant of it. From hence, it results, that the laws of the several state 
governments were the laws of sovereign states, and as such were obligatory upon the 
people of such state, from the time they were enacted. (Mr. Justice Gushing in Mcllvaine 
v.Coxe, 4 Cranch, 209, 212, decided in 1808.) 

This Court has decided, "That there was no territory within the United States, that was 
claimed in any other right than that of some one of the confederated states ; therefore, 
there could be no acquisition of territory made by the United States, distinct from, or 
independent of, some one of the states; the soil and sovereignty were as much theirs at the 

37 



38 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

declaration of independence, as at this hour." (1827.) "Thus stood the rights of the par- 
ties at the commencement of the revolution ; . . ." (Mr. Justice Baldwin, A General View of 
the Origin and Nature of the Constitution and Government of the United States, 1837, p. 86.) 

The People of this State, being by the Providence of God, free and independent, have 
the sole and exclusive Right of governing themselves as a free, sovereign, and independent 
State; and having from their Ancestors derived a free and excellent Constitution of Gov- 
ernment whereby the Legislature depends on the free and annual Election of the People, 
they have the best Security for the Preservation of their civil and religious Rights and 
Liberties. And forasmuch as the free Fruition of such Liberties and Privileges as Hu- 
manity, Civility and Christianity call for, as is due to every Man in his Place and Propor- 
tion, without Impeachment and Infringement, hath ever been, and will be the Tranquility 
and Stability of Churches and Commonwealths; and the Denial thereof, the Disturbance, 
if not the Ruin of both. 

Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of 
Representatives, in General Court assembled, That the ancient Form of Civil Government, 
contained in the Charter from Charles the Second, King of England, and adopted by the 
People of this State, shall be and remain the Civil Constitution of this State, under the sole 
authority of the People thereof, independent of any King or Prince whatever. And that this 
Republic is, and shall forever be and remain, a free, sovereign and independent State, by 
the Name of the STATE of CO'NNECTICUT. (Constitution of Connecticut, 1776, Ben: 
Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic 
Laws of the United States, 1877, Part I, pp. 257-258.) 

The people inhabiting the territory formerly called the province of Massachusetts Bay 
do hereby solemnly and mutually agree with each other to form themselves into a free, 
sovereign and independent body-politic or State, by the name of the commonwealth of 
Massachusetts. (Constitution of Massachusetts, 17S0. Part The Second, The Frame of 
Government, Ben: Perley Poore, The Federal and State Constitutions, Colonial Charters, 
and other Organic Laws of the United States, 1877, Part I, p. 960.) 

This alliance, league, or confederacy of the states with each other, can leave no doubt, 
that up to the time of the final ratification in March, 1781, each state was separately 
sovereign in its own inherent right; and so remained as to all power not expressly dele- 
gated, as was declared in the second article [of Confederation]. The third article is also 
conclusive, that the object of the alliance was to maintain and perpetuate their separate 
sovereignty. This is the more manifest, when these articles are taken in connection with 
the alliance of the states with France. . . . 

" The essential and direct end of the present defensive alliance, is to maintain effectually, 
the hberty, sovereignty, and independence, absolute and unlimited, of the said United 
States, as well in matters of government, as of commerce." In the 11th article, the parties 
make a mutual guaranty; in that of France, "His most Christian majesty guaranties, 
on his part, to the United States, their liberty, sovereignty, and independence, absolute 
and unlimited, as well in matters of government as commerce; also their posseesions,. 
and the additions or conquests that their confederation may make during the war," &c. 
1 Laws, 95, 98. 

This guaranty was fulfilled by the treaty of peace, in which "His Britannic majesty- 
acknowledges the said United States, to wit: New Hampshire, &c., to be free, sovereign 
and independent states." I Laws, 196. This recognition, relating back to the separate 
or unanimous declarations by the states, as this Court have held it; has the _ same 
effect, as if the states had then assumed the same position, bjv. the previous authority of 
the king ; the treaty not being a grant, but a recognition, and subsequent ratification of 
their pre-existing condition ; and all acts which had declared and defined it previous to 
the treaty, related back to 1776. 

Such being the relations of the several states, in their federal and foreign concerns, 
it follows, that as to their internal concerns, they were in the same attitude of absolute 
and unlimited sovereignty, before the articles of confederation, as they were afterwards, 
except so far as they abridged it. Each was a party to the treaty of alliance and peace, 
and each was bound by the guarantee to France, after the confederation was abolished, 
and the constitution was established, as firmly as before : the states who delayed their 
ratification remained so bound, for they could by no act of their own, impair the rights 
of France: and they were equally entitled to the effects of the treaty of peace, whether 
they became constituent parts of the Union, by ratifying the constitution, or remained foreign 
states, by not adopting it. Their state constitutions and governments, remained unimpaired 
by any surrender of their rights ; so .that of consequence, their sovereignty was perfect, 
so long as they continued free from any federal shackles ; so the states acted, and so the 



A CONFEDEItATION OF. SOVEREIGN STATES 39 

people of each declared, in all their conventions, from 1776 to 1780. (Mr. Justice Baldwin, A 
General View of the Origin and Nature of the Constitution and Government of the United 
States, 1837, pp. 79-Si-) 

The problem before the Convention was to form a confederation of States which should 
possess the requisite vigor without being a consolidation of the States. They knew that 
the latter plan would be rejected by their constituents, although Alexander Hamilton and 
others thought that there could be no other permanent solution of the problem. The Con- 
vention sought for light and guidance in the example of other confederated governments. 
They looked abroad to_ see how other countries had extricated themselves from similar 
difficulties. They examined the history of all federations. Americans at that time had 
no need to refer to any experience but their own, if they would learn the peculiar danger 
of a confederation. They had too often seen the Continental Congress in the attitude 
of a helpless suppliant before States that made a jest of its requisitions, to suppose that 
any national government which could not raise a revenue of its own would be adequate 
to the exigencies of the Union. We are therefore principally indebted to the distresses 
of the Confederation for the greatest political invention of the Constitution. All previous 
confederacies of which history contains any record had acted on the component States, 
and not on individuals. The Constitution, by its provision for operating upon the individual 
citizen, affords a far better guarantee of permanence than the hegemony of any powerful 
member of the Confederation could do. The Constitution thus gave a new maxim of 
unquestionable value to the science of politics. The Swiss Union of 1848 imitated it in 
this regard, and thus finally healed the dissensions between the cantons. (W. T. Brantly, 
Of the Influence of European Speculation in the Formation of the Federal Constitutioaj 
J8S0, in Southern Law Reziew, New Series, Vol. VI. pp. 361-362.) 



CHAPTER III 



A CONFEDERATION OF SOVEREIGN STATES 



A United 

States Congress 



Under the third resolution proposed by Richard Henry Lee on June 7, 
1776, that " a plan of confederation be prepared and transmitted to the re- 
spective Colonies for their consideration and approbation," a committee of 
one from each colony was chosen on the 12th to report a form of confed- 
eration. This committee consisted of " a member from each colony " with 
John Dickinson of Delaware as chairman. A plan drafted by Mr. Dickinson 
was reported on July 12th ^ and was considered twelve days later in the com- 
mittee of the whole house and was the subject of debate from time to time 
until November 15, 1777, when it was adopted by the Congress with some 
important amendments.^ The Congress directed that " these articles shall be 
proposed to the legislatures of all the United States, to be considered, and if 
approved of by them, they are advised to authorize their delegates to ratify 
the same in the Congress of the United States; which being done, the same 
shall become conclusive." ^ A circular letter to accompany the articles, in 
accordance with this resolution, was adopted on November 17, 1777. A form 
of ratification was adopted June 26, 1778. At various dates the States ap- 
proved the Articles in the manner recommended by the Congress, the last 
State being Alaryland, whose delegates signed on behalf of that State, March 
1, 1781. Thereupon the United States had, for the first time, a form of 
government in law as well as in fact and on the succeeding day the Congress 
met for the first time under this form of government. 

It may be observed in this connection, before proceeding to an examina- 
tion of the successive steps by which the Articles of Confederation assumed 
form and shape, that the Congress, during this period, was intent upon win- 
ning the independence which the Articles were to regulate, and they were 
therefore of secondary importance ; that, for one reason or another, the mem- 
bership of the committee changed so that, at the date of their adoption by 
Congress, only one of the original members of the committee was still a mem- 
ber thereof and that even he vras absent on that occasion. Changing member- 
ship, changing conditions, the differences between the States and the difficulty 
of reconciling them consumed time and pat-tence, with the inevitable result that 

^Journals of the Cotitiiieutal Congress, Vol. v, pp. 546-554. 

2 Ibid., Vol. ix. pp. 907-928. 

3 Ibid., p. 925. 

40 



Large 



A CONFEDERATION OF SOVEREIGN STATES 41 

the Articles of Confederation were a compromise, just as the Constitution 

of 1787 creating the more perfect Union of the States was a compromise. 

In the Congress as in the Convention, the large States wanted a larger influence |^3°^' 

than the smaller, to which the reply was then, as now in the society of nations : 

a little colony has its all at stake as well as a great one; our identity is a 

precious thing; we do not propose to be swallowed up. 

In addition to this difference of view as to the rights of the States, large 
and small, the motives of the sections were questioned and a lack of confi- 
dence expressed, impossible to overcome on the moment, and indeed overcome 
in the Constitutional Convention only after years of suffering in a common 
cause when the statesmen of all the sections had learned to know, and there- 
fore rightly to appreciate one another. New England, which may be said to 
have brought about the Revolution, was not popular and was viewed with 
suspicion and jealousy, Benjamin Harrison of Virginia saying that " the 
Yankees " ruled as absolutely in Congress " as the Grand Turk in his domin- 
ions." ^ This idea did not stop with Virginia, but pervaded the south, for 
Edward Rutledge of South Carolina, wrote: 

The Force of their Arms I hold exceeding Cheap, but I confess I dread 
their over-ruling Influence in Council. I dread their low Cunning and those 
. . . Principles which Men without Character and without Fortune in general 
possess, which are so captivating to the lower class of Mankind.^ 

New England, on its part, viewed its neighbors to the south with equal sus- 
picion and distrust, not unmixed with contempt, if John Adams is to be cred- 
ited, who says of them : 

The dons, the bashaws, the grandees, the patricians, the sachems, the na- 
bobs, call them by what name you please, sigh, and groan, and fret, and some- 
times stamp, and foam, and curse, but all in vain.^ 

In view of such circumstances the wonder is that the confederation took place, 
not that the instrument of confederation was faulty. 

The Articles exist in two forms, in the draft in Dickinson's handwriting, ForJs'^of 
laid before the Congress on July 12, 1776, and in the amended form in which 
Dickinson's draft was approved by the Congress on November 15, 1777, 
recommended to the States for their ratification and ultimately ratified by 
them.* The essentials of the completed instrument are contained in Dickin- 
son's draft, which suggests a familiarity with Franklin's project, notably 

1 E. P. Oberholtzer, Robert Morris, 1903, p. 37. 

2 To John Jay, June 29, 1776. The Correspondence and Public Papers of John Jay, H. P. 
Johnston ed.. Vol. i, p. 67. 

3 To Patrick Henry, June 3. 1776. The Works of John Adams, C. F. Adams ed.. Vol. ix, 
p. 387. 

*The dates of ratification were: Massachusetts, Rhode Island. Connecticut, New York, 
Pennsylvania, Virginia, South Carolina, July 9, 1778 — North Carolina, July 21, 1778 — Geor- 
gia, July 24, 1778 — New Jersey, November 26, 1778 — Delaware, February 22, 1779 — Mary- 
land, March 1. 1781. 



the Articles 



42 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



in the fact that the States, although independent, are spoken of as colonies. 
Some of the amendments are far from happy, especially those indicating the 
amounts of revenue which each colony is to raise and to contribute to the 
general government. In the eleventh article of Dickinson's draft it is provided 
that " All Charges of Wars and all other Expences that shall be incurred 
for the common Defence, or general Welfare, and allowed by the United 
States assembled, shall be defrayed out of a common Treasury, which shall 
be supplied by the several Colonies in Proportion to the Number of Inhab- 
itants of every Age, Sex and Quality, except Indians not paying Taxes, in 
each Colony . . ." ^ In the amended text the contributions of the States are 
to be " in proportion to the value of all land within each State," — an amend- 
ment, it may be said in passing, which appears to have made the Articles un- 
workable in practice, however acceptable it may have been in theory. 

It is not meant, in this connection, to express a preference for a poll as 
distinguished from a land tax, but the shifts to which the Congress was put 
to increase the value of land, and thus increase the State quotas, exposed that 
body to ridicule and brought the government into contempt in a way which 
would not have been possible if the text of the original draft had been adopted. 

The government of the Confederacy was to be styled the United States of 
America, in which each State retained " its sovereignty, freedom and inde- 
pendence, and every power, jurisdiction and right," not " expressly delegated 
to the United States, in Congress assembled.". The framers of this instru- 
ment were well informed as to the nature of the government which they were 
establishing. It was to be a Union of States, not a single State. It was to 
be a perpetual "league of friendship," " for their common defence, the se- 
curity of their liberties and their mutual and general welfare," in which the 
States pledged themselves to protect one another against attack of any kind 
and from any quarter. 

For the management of the general interests of the United States there 
was to be a Congress, which should meet once a year and exercise the powers 
with which the Confederation was vested. Each of the States was to be 
represented by not less than two nor more than seven delegates, appointed and 
paid by them, who might not serve as delegates more than three years out of 
any six. The States had an equal voice, each retaining and casting a single 
vote, notwithstanding the greater or less number of deputies which they might 
choose to send to Congress. 

It was recognized that the purpose for which the Union was formed could 
not be effected if the States did not, in addition to the powers conferred upon 
the Congress, renounce the exercise of some of the powers inherent in sov- 
ereignty, freedom and independence. They therefore expressly renounced 
1 Journals of the Continental Congress, Vol. v, p. 548. 



A CONFEDERATION OF SOVEREIGN STATES 43 

the right of making treaties with foreign countries or of entering into treaties 
or alliances between themselves without the consent of the Congress, and 
they pledged themselves not to lay any imposts or duties which might inter- 
fere with the treaties which the Confederation might make with foreign coun- 
tries. While maintaining the right to keep up a militia, they renounced the 
right to create and maintain an army or navy without the consent of Con- 
gress, and they likewise renounced the right to engage in war, without the 
consent of Congress, except when actually attacked. They reserved to them- 
selves the right to appoint regimental officers of the regiments raised for con- 
tinental service, but vested the appointment of the general officers in Congress. 

They endowed the general Congress with broad powers, suggesting but ^f^Tres 
not actually making of the States a nation — powers with \yhich the Congress 
under the Constitution has been invested and which with sundry additions 
have been deemed adequate, doubtless due to the fact that the government 
under the latter instrument acts directly upon the people of the States, thus 
«?xecuting the powers with which it is invested instead of relying upon the 
States as its agents. Among these powers were the sole right of declaring Peace and 
war and concluding peace, of sending and receiving embassies, of entering 
into treaties and alliances, of issuing currency, of fixing a standard of 
weights and measures, of establishing and regulating post offices throughout 
the United States, of appointing all officers of the army with the exception 
of regimental officers of contingents raised by the States, and all naval officers, 
and of making rules for the government of the land and naval forces and 
directing their operations. The Congress was also empowered to ascertain 
the sums of money necessary for the service of the United States and to 
apply it to the public service, to borrow money or emit bills of credit, to build 
and equip a navy, to agree upon the number of land forces and to make requi- 
sitions, binding each State to furnish its quota " in proportion to the number 
of white inhabitants in each State." In addition, the Congress was spe- 
cifically authorized to appoint a committee of States, consisting of a delegate 
f;:om each State, to sit during the recess of the Congress and to carry on the 
government during such recess, to appoint other committees and civil officers 
necessary for the management of the general forces of the United States under 
their direction, and to appoint from the members of Congress a president, 
who should not preside for more than one in any term of three years. 

These powers were granted because they were felt to be necessary to 
secure the independence of the United States and to maintain peace and har- 
mony among the States themselves, but in granting them the States placed 
what they conceived to be a salutary check upon their exercise, providing 
that the more important of them, which they specified, should be exercised 
only with the consent of nine States, and in the tenth of the Articles they 



44 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

vested the committee of the States, or any nine of them, with power to execute 
during the recesses of Congress such powers as the Congress might delegate to 
the committee, or any nine of them, but withheld from them any power which 
the Congress itself could exercise only with the consent of nine States, all 
of which were specified and enumerated in the following paragraph of the ninth 
article, which also stated specifically the requirement of a majority in all other 
matters : 

The United States, in Congress assembled, shall never engage in a war, nor 
grant letters of marque and reprisal in time of peace, nor enter into any 
treaties or alliances, nor coin money, nor regulate the value thereof, nor as- 
certain the sums and expenses necessary for the defence and welfare of the 
United States, or any of them : nor emit bills, nor borrow money on the 
credit of the United States, nor appropriate money, nor agree upon the num- 
ber of vessels of war to be built or purchased, or the number of land or sea 
forces to be raised, nor appoint a commander in chief of the army or navy, 
unless nine states assent to the same ; nor shall a question on any other point, 
except for adjourning from day to day, be determined, unless by the votes of 
a majority of the United States, in Congress assembled. 

The renunciation of the right which sovereign States possess, and unfor- 
tunately exercise, of engaging in war among themselves, and also the renun- 
ciation of the right to enter into treaties and agreements with themselves 
without the consent of the Congress, made it necessary to provide some method 
of settling disputes which might arise between the States, and which other- 
wise would remain unsettled because of the renunciation of war and of diplo- 
matic negotiation. In certain cases of an international character, which 
might, in addition, give rise to disputes among the States, the Congress was 
authorized to establish " rules for deciding, in all cases, what captures on 
land or water shall be legal, and in what manner prizes, taken by land or 
naval forces in the service of the United States, shall be divided or appro- 
priated ; " to appoint " courts for the trial of piracies and felonies committed 
on the high seas;" and to establish "courts for receiving and determining, 
finally, appeals in all cases of captures; provided, that no member of Congress 
shall be appointed a judge of any of the said courts." 
Congress For disputcs that might arise between themselves, for which no tribunal 

Appellate cxistcd, it was providcd in the ninth article " that the United States, in Con- 

Jurisdiction ^ 

gress assembled, shall also be the last resort on appeal in all disputes and 
differences now subsisting, or that hereafter may arise between two or more 
states concerning boundary, jurisdiction or any other cause whatever," and 
specifically mentioning " all controversies concerning private right of soil, 
claimed under different grants of two or more states." The article likewise 
provided the method of settlement, which was, briefly : 

The agents of the States in controversy appeared before the Congress, 



I 



A CONFEDERATION OF SOVEREIGN STATES 45 



stating their controversy and asking for the appointment of commissioners to 
form a temporary court or tribunal. If the agents agreed upon the members 
of the court it was organized and the case referred to it. If, however, the 
agents did not agree upon the members of the court, the Congress selected 
three persons from each of the thirteen States, and from the thirty-nine thus 
chosen the names were to be struck, beginning with the defendant, until thir- 
teen names were left. From this list of thirteen not less than seven nor more 
than nine were to be drawn by lot, and of this number any five could form 
the court. In the absence of the agent of any one of the litigating States, or 
upon his refusal to strike as provided by the article, the Secretary of the 
Congress was to act in his stead. 

It was foreseen that changes in the Articles of Confederation might be 
necessary, but as the instrument was a diplomatic agreement no alteration was 
to be made unless agreed to in the Congress and " afterwards confirmed by 
the legislatures of every State." 

From this brief summary it will be observed that the Articles of Confed- 
eration provide a government, with limited and specifically enumerated pow- 
ers, which were only to be exercised with the consent of nine or of a majority 
of the sovereign, free and independent States of which the Confederation was 
composed. It will be further observed that the legislative was likewise the 
executive branch of the government, in so far as either existed, because the 
President of the Congress was the presiding officer but possessed of no inde- 
pendent powers, and the committee of the States was appointed by the Con- 
gress for the exercise of certain, but not all, of the powers of the Congress ^^"1^^^"°'^ 
during its recess. There is no doubt a suggestion of a judiciary, but the judi- "'^"^ 
ciary, such as it was, was only constituted in the case of the court of appeals 
for prize cases, and from time to time temporary tribunals were to be chosen by - 
the Congress for the trial of controversies between the States ; cases involving 
piracies and felonies were to be tried by the private courts of the States. 

There is here no clear and conscious recognition of the threefold divi- 
sion of government so conspicuous in the Constitutions of each of the thir- 
teen States composing the Confederation and a fundamental though unex- 
pressed principle of the Constitution which succeeded the Articles of Con- 
federation, a conception which was reenforced from French sources, due to 
the alliance of France which so powerfully contributed to making the Declara- 
tion of Independence a reality. 

The defects of the Articles of Confederation have been pointed out by Defects 
every historian of the United States who has had occasion to deal with this 
period of our history. The Articles were indeed defective. They were not 
however so defective as the critics would have us believe, and even if they were 
it would seem to be wiser to consider the difficulties of the situation and to 



46 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

regard the Articles of Confederation as a step to a more perfect Union, and a 
very important one, than to deny them any claim upon our consideration. 
The Articles were not to blame if faulty; it was the defective vision of the 
statesmen who drafted them and of the States which were unwilling to grant 
a general government more extensive powers. It is easy for us to see the 
advantages of a closer union, because we have benefited by its blessings, but 
a union of the kind of the Constitution was hitherto unknown in the history 
of nations, and the necessity of a broader and more powerful general gov- 
ernment, acting directly upon the States and not through the States, was not 
likely to be granted by colonies which had revolted because of the attempt 
of the mother country to impose its authority from above, and to impose 
the acts of a supreme legislature upon the colonies, overriding the local legis- 
latures, in order to make the acts of Parliament apply to the individual with- 
out consideration of the colonies as such. 

The purpose of the Revolutionary statesmen was to overthrow what they 
considered the tyranny of the mother country, claiming supremacy in all mat- 
ters ; it was not to create a domestic tyrant in the place of the imperial Parlia- 
ment. Without compromise and concession and the safeguarding of the 
States and their peoples against the aggression of the general government, 
American statesmen would not,have agreed to the provisions of the Constitu- 
tion of the United States; and the different States, in agreeing to it, insisted 
upon certain amendments, which were proposed by the first Congress under 
the Constitution in 1789 and added to that instrument two years later. And 
even then two States, North Carolina and Rhode Island, refused to ratify 
the Constitution and did so only after it had gone into effect and the ten 
amendments to it had been proposed and, in the case of Rhode Island, 
ratified. 

While recognizing the defects of the Confederation, which were indeed 
obvious to those who wished union under a constitution rather than a diplo- 
matic union, competent judges nevertheless recognized its excellences. It is 
noteworthy that George Washington, who had suffered from the defects of 
the Confederation more than any man living, nevertheless had a good word 
to say for the union. ^ John Jay was also qualified to speak, as he had been 
President of the Congress and as Secretary of Foreign Affairs he felt the 
imperfections of the system, especially in so far as foreign relations were 
concerned. Yet he was not pessimistic, saying of it: " Our federal govern- 

iln a letter to Benjamin Harrison dated January 18, 1784, General Washington said: 
" That the prospect before us is fair . . . none can deny ; . . . I believe all things will come 
right at last, . . . The disinclination of the individual States to yield competent powers to 
Congress for the federal government, . . . will, if there is not a change in the system, be 
our downfall as a nation." An extension of federal powers, he believed, would " make us 
one of the most wealthy, happy, respectable and powerful nations that ever inhabited the 
terrestrial globe." W. C. Ford, The Writings of George Washington, Vol. x, pp. 344-6. 
See also Sparks, Writings of George Washington, Vol. ix, p. 11. 



A CONFEDERATION OF SOVEREIGN STATES 47 

ment has imperfections, which time and more experience will, I hope, effectually 
remedy." ^ Thomas Jefferson, it will be admitted, was also qualified to speak, 
and he probably expressed the view of most men of his day when he said that 
" with all the imperfections of our present government it is without compari- 
son the best existing, or that ever did exist." ^ John Marshall, whom many 
regard as the creator of our union through his opinions as Chief Justice of 
the Supreme Court, felt that if the Articles of Confederation preserved the 
idea of union until a more efficient system was adopted, which they certainly 
did and more, that then " this alone is certainly sufficient to entitle that instru- 
ment to the respectful recollection of the American people and its framers to 
their gratitude." ^ 

From a national point of view the Articles were defective ; from an inter- s^g^jgcan^e^ 
national point of view they offered an example of a union of sovereign, free 
and independent States much closer than that of the society of nations, and, in 
spite of their imperfections, indeed because of their imperfections, they show, 
it is believed, how the society of nations can be organized as a Confederation 
without involving the sacrifice of sovereignty, should the members of that 
society be inclined to consider a conscious and closer union than exists today. 

While the defects of the Confederation were the subject of debate in the James 
Congress, of discussion in the press, the talk alike of men of affairs and of summary 
private citizens, and the topic of correspondence if not its cause, among lead- weakness 
ers of thought of the period, James Madison, to whose untiring efforts the 
world is principally indebted for the American Constitution, has, as was to be 
expected, stated more elaborately than any one of his contemporaries the weak- 
ness and the inadequacy of the Articles of Confederation irua memorandum 
prepared on the eve of the Convention, called for the sole and express purpose 
of recommending " a Federal constitution adequate to the exigencies of gov- 
ernment and the preservation of the Union." 

In a paper written well nigh fifty years after the event, intended, appar- 
ently, as a preface to the Debates of the Convention, which he himself attended 
and reported with his own hand, he gives in the following passage the reasons 
why his testimony on this point should be accepted. 

Having served as a member of Cong^. through the period between Mar. 
1780 & the arrival of peace in 1783, I had become intimately acquainted with 
the public distresses and the causes of them. I had observed the successful 
opposition to every attempt to procure a remedy by new grants of power to 

1 Letter to Lord Lansdown, April 16, 1786. William Jay, The Life of John Jay, 1833, Vol. 
ii, p. 183. 

^ Letter to E. Carrington, Paris, August 4, 1787. Writings of Thomas Jefferson, Ford 
ed.. Vol iv, p. 424. 

In a letter to M. de Meusnier, Jan. 24, 1786, Mr. Jefferson said : 

" The Confederation is a wonderfully perfect instrument considering the circumstances 
under which it was formed." (Ford ed., iv, 141.) 

* The Life of George Washington, by John Marshall, Philadelphia, 1805, v. 4, p. 416. 



48 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Cong=. I had found moreover that despair of success hung over the com- 
promising provision of April 1783, for the Public necessities, which had been 
so elaborately planned and so impressively recommended to the States. Sym- 
pathizing, under this aspect of afifairs, in the alarm of the friends of free Gov*, 
at the threatened danger of an abortive result to the great & perhaps last ex- 
periment in its favour, I could not be insensible to the obligation to co-operate 
as far as I could in averting the calamity. With this view I acceded to the 
desire of my fellow Citizens of the County that I should be one of its repre- 
sentatives in the Legislature, hoping that I might there best contribute to in- 
culcate the critical posture to which the Revolutionary cause was reduced, 
and the merit of a leading agency of the State in bringing about a rescue of 
the Union, and the blessings of liberty staked on it, from an impending 
catastrophe. 

It required but little time after taking my seat in the House of Delegates in 
May 1784, to discover that however favorable the general disposition of the 
State might be towards the Confederacy the Legislature retained the aversion 
of its predecessors to transfers of power from the State to the Gov*, of the 
Union; notwithstanding the urgent demands of the Federal Treasury; the 
glaring inadequacy of the authorized mode of supplying it, the rapid growth 
of anarchy in the Fed'. System, and the animosity kindled among the States 
by their conflicting regulations.^ 

It is evident to us of the present day, from an inspection of his writings 
and from his leadership in the Constitutional Convention, that James Madi- 
son was the fittest by study and experience to propose the basis of a Consti- 
tution for the more perfect union, and his contemporaries, without the means 
of knowledge at our disposal, so considered him. One of his colleagues in 
the Federal Convention, writing of him, says : 

M"". Maddison is a character who has long been in public life ; and what 
is very remarkable every Person seems to acknowledge his greatness. He 
blends together the profound politician, with the Scholar. Li the manage- 
ment of every great question he evidently took the lead in the Convention, 
and tho' he cannot be called an Orator, he is a most agreeable, eloquent, and 
convincing Speaker. From a spirit of industry and application which he 
possesses in a most eminent degree, he always comes forward the best in- 
formed Man of any point in debate. The affairs of the United States, he 
perhaps, has the most correct knowledge of, of any Man in the Union. He 
has been twice a Member of Congress, and was always thought one of the 
ablest Members that ever sat in that Council.^ 

It was not by chance that Mr. Madison made this impression upon his 
fellow delegate, who in this matter spoke for his contemporaries. He had 
represented his State in the Continental Congress and was aware of the 
defects of the Confederation from actual experience in that body. He was 
familiar with every detail of the Articles of Confederation, and as a prep- 
aration for his work in the Convention he had set forth in connected form 
the defects of the Confederation in a memorandum, and he had likewise 

1 The Writings of lames Madison, Gaillard Hunt ed., Vol. ii, pp. 396-7. 

2 Notes of Major William Pierce on the Federal Convention of 1787, American Historical 
Review, Vol. iii, p. 331. 



A CONFEDERATION OF SOVEREIGN STATES 49 

embodied in another memorandum the defects of the known instances of 
confederations, in so far as they could be gathered from historical records 
then at his disposal.^ He arranged the defects of the Confederation under 
eleven headings and accompanied each with apt illustrations.^ Of this im- 
portant document, which is unfortunately too long to be quoted in its entirety, 
as it deserves to be, the following is a brief analysis : 

1. Failure of the States to comply with the Constitutional requisitions. 
This defect Mr. Madison considered to be so obvious as to require neither 

illustration nor argument. It resulted, he said, " so naturally from the num- 
ber and independent authority of the States, and has been so uniformly exem- 
plified in every similar Confederacy, that it may be considered as not less 
radically and permanently inherent in, than it is fatal to the object of, the 
present system." 

2. Encroachments by the States on the federal authority. 

As examples of this defect he cites the wars and treaties of Georgia with 
the Indians, the compacts between Virginia and Maryland and between Penn- 
sylvania and New Jersey, the troops raised and kept up by Massachusetts 
without the consent of the Confederation, as required by the sixth of the 
articles. 

3. Violations of the law of nations and of treaties. 

Under this heading he said that " not a year has passed without instances 
of them in some one or other of the States," and as examples he cites the 
Treaty of Peace with Great Britain, the treaty with France, the treaty with 
Holland, each one of which had been violated, and although these nations had 
been forebearing, or, as Madison said, " have not been rigorous in animad- 
verting on us," indulgence was not always to be expected in the future. 

4. Trespasses of the States on the rights of each other. 

Under this caption Mr. Madison has a somewhat imposing and alarming 
list, citing specifically the law of his own State restricting foreign vessels to 
certain ports, and the laws of Maryland and New York in favor of vessels of 
their own citizens. Among the additional examples he mentions are the issue 
of paper money, making property a legal tender, acts of the debtor State in 
favor of debtors, affecting not only citizens of the other States but citizens 
or subjects of foreign nations, and finally the practice of many States in 
violating the spirit of the Articles of Confederation by putting the goods and 
products of the members of the Union upon the same footing with those of 
foreign countries. 

5. Want of concert in matters where common interest requires it. 

1 Writings of Madison, Hunt ed., Vol. ii, pp. 369-390. See also memorandum contained 
in Letters and Other Writings of James Madison, pub. by order of Congress, 1865, Vol. i, pp. 
389-398. 

2 Ibid., pp. 361-369. Also see pp. 391-412 for sketch on the origin of the Constitutional 
Conventioa 



50 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

To this defect Mr. Madison attributes the deplorable state of commerce 
throughout the States, a weakness also affecting the national dignity, inter- 
est and revenue. To this clause he also traces inferior but still important 
defects, such as the want of uniformity in laws concerning naturalization and 
literary property, the lack of provision for national seminaries, for grants of 
incorporation for national purposes, for canals and other works of general 
utility. 

6. Want of guaranty to the States of their Constitutions and laws against 
internal violence. 

The hands of the Confederation were, he says, tied in this matter, because 
the Articles are silent as to it, and a very distressing example of this is men- 
tioned in his correspondence, that of Shays' rebellion in Massachusetts in 1787, 
which also produced a profound impression upon contemporary opinion. 

7. Want of sanction to the laws, and of coercion in the Government of the 
Confederacy. 

Mr. Madison considered a sanction as essential to the idea of law as 
coercion is to that of government. This defect of the Confederation was 
due to the fact that the Articles did not form a " Political Constitution," but 
were, as he says, " nothing more than a treaty of amity, of commerce, and of 
alliance between independent and Sovereign States." Therefore, there was 
no central government and there was a lack of power in the Congress to compel 
obedience to law; and in Madison's opinion coercion in government was as 
essential as the sanction of law. The experience of the Congress had, he 
said, demonstrated " that a unanimous and punctual obedience of 13 inde- 
pendent bodies to the acts of the federal Government ought not to be calcu- 
lated on," and without the supremacy of the acts of the Union, interpreted 
and applied in the sense in which they were meant by the Congress, it was 
impossible to better conditions or indeed to preserve the Union. 

8. Want of ratification by the people of the Articles of Confederation. 
Mr. Madison attached very great importance to this defect, as appears 

from his correspondence and also from his attitude in the Convention, recog- 
nizing clearly that a ratification by the people within a State would make it 
the law of the people, as well as of the State, and that an act or law ratified 
by the people would give the government a right to proceed directly against 
the person violating the act or law, instead of appealing to the State to correct 
the violation. 

These consequences he considered as characteristic of what he called a 
political constitution, whereas in the Confederation, which he properly re- 
garded as a -league of sovereign powers and not as a political constitution, 
the Union could only act upon the State and through the State upon its 
citizens. In this connection, he also pointed out the dange/to the Union of 
the violation of the compact by a State, which would give to the other mem- 



A CONFEDERATION OF SOVEREIGN STATES 51 

bers of the diplomatic union the right to withdraw and thus to destroy the 
Confederation. 

9. MultipHcity of laws in the several States. 

This is a defect in a nation or in a State, which apparently can not be 
corrected without a change of mind, heart and conduct on the part of members 
of legislatures. If Mr. Madison expected far less under a " Political Con- 
stitution " his reputation as a prophet would be shattered, for the laws of the 
Congress under the Constitution and of the different States since the date of 
its adoption are so constantly amended that we do not know whether our 
knowledge, so painfully acquired during a recess of these lawmaking bodies, 
has been repealed overnight by their action when in session. His comments 
on this point are, however, so interesting that they are quoted rather than 
paraphrased. Thus he says : 

Among the evils then of our situation, may well be ranked the multiplicity 
of laws from which no State is exempt. As far as laws are necessary to 
mark with precision the duties of those who are to obey them, and to take 
from those who are to administer them a discretion which might be abused, 
their number is the price of liberty. As far as laws exceed this limit they are 
a nuisance ; a nuisance of the most pestilent kind. Try the Codes of the sev- 
eral States by this test, and what a luxuriancy of legislation do they present. 
The short period of independency has filled as many pages as the century 
which preceded it. Every year, almost every session, adds a new volume. 
This may be the effect in part, but it can only be in part, of the situation in 
which the revolution has placed us. A review of the several Codes will shew 
that every necessary and useful part of the least voluminous of them might 
be compressed into one-tenth of the compass, and at the same time be ren- 
dered ten-fold as perspicuous. 

10. Mutability of the laws of the States. 

Mr. Madison was aware that his previous heading practically included this 
one. Nevertheless he stated it for the sake of completeness and as his obser- 
vations upon it have not lost their point they are quoted to give full effect to 
the previous objections. Thus he says: 

This evil is intimately connected with the former, yet deserves a distinct 
notice, as it emphatically denotes a vicious legislation. We daily see laws re- 
pealed or superseded before any trial can have been made of their merits, and 
even before a knowledge of them can have reached the remoter districts 
within which they were to operate. In the regulations of trade, this instabil- 
ity becomes a snare not only to our citizens, but to foreigners also. 

11. Injustice of the laws of the States. 

This subject is likewise connected with the previous ones, because it is 
not merely the multiplicity of the laws and the numerous changes involved 
to which he objects. They were even at times unjust, in addition to other 
vices, and he was especially anxious to find the reasons for the injustice of 
the laws of the different States, in the belief that when the reasons had been 



52 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Sovereignty 



disclosed the remedy would follow close upon their footsteps. The causes of 
the evils he held to be, first, in the representative bodies, and second, in the 
people themselves ; in the representative bodies because representative appoint- 
ments are, he says, sought from three motives : "1. Ambition. 2. Personal 
interest. 3. Public good." And he felt obliged to state that " Unhappily, 
the two first are proved by experience to be most prevalent." 

But he regarded, and properly, the people to be more at fault, because if 
they wanted different representatives they could have them, and if they insisted 
upon just laws their representatives would frame them. He finds the chief 
fault to be in the fact that civilized societies are divided into different interests 
and factions, " creditors or debtors, rich or poor, husbandmen, merchants, or 
manufacturers, members of different religious sects, followers of different 
political leaders, inhabitants of different districts, owners of different kinds 
of property, &c., &c." He mentions three correctives, but finds them to be 
wanting whenever the interest of the individual seems to suggest their viola- 
tion. They are: " 1. A prudent regard to their own good, as involved in 
the general and permanent good of the community." As a result of expe- 
rience Mr. Madison holds that this consideration lacks decisive weight, and 
he includes nations as well as individuals, saying, " It is too often forgotten, 
by nations as well as by individuals, that honesty is the best policy." The 
second is a respect for character, and here again he finds that this corrective 
does not prevent injustice, because, as he says, " In a multitude its efficacy is 
diminished in proportion to the number which is to share the praise or the 
blame," and even if it prevails within a society it is doubtful if it crosses the 
frontier and extends into adjoining provinces or States, inasmuch as actions 
are constantly committed within one State affecting strangers beyond its con- 
fines. The third is religion, which he mentions only to reject, saying, " The 
conduct of every popular assembly acting on oath, the strongest of religious 
ties, proves that individuals join without remorse in acts, against which their 
consciences would revolt if proposed to them under the like sanction, sep- 
arately in their closets." 

As the result of his careful and prolonged study of this subject, he finds 
that " The great desideratum in Government is such a modification of the 
sovereignty as will render it sufficiently neutral between the different interests 
and factions to controul one part of the society from invading the rights of 
another, and, at the same time, sufficiently controuled itself from setting up 
an interest adverse to that of the whole society," and he concludes by con- 
sidering the different forms of government and the extent to which they may 
be counted upon to meet his requirements. Thus he says : 

In absolute Monarchies the prince is sufficiently neutral towards his sub- 
jects, but frequently sacrifices their happiness to his ambition or his avarice. 



A CONFEDERATION OF SOVEREIGN STATES 53 

In small Republics, the sovereign will is sufficiently controuled from such a 
sacrifice of the entire Society, but is not sufficiently neutral towards the parts 
composing it. As a limited monarchy tempers the evils of ah absolute one; 
so an extensive Republic meliorates the administration of a small Republic. 

The form of government which he himself felt necessary was later laid Madison's 
before the Federal Convention by Mr. Randolph in what has been called the pibTk^ 
Virginia plan, which not only bears the impress of his experienced and ^"^"^ 
scholarly mind but is in his own handwriting as well. He was not, however, 
unconscious of the fact that something was needed above and beyond the form 
of government, and it is the conscious expression of this fact that gives point 
and value to his observations. Governors of the States must be worthy of 
the trust, and with this he aptly closes his observations : 

An auxiliary desideratum for the melioration of the Republican form is 
such a process of elections as will most certainly extract from the mass of 
the society the purest and noblest characters which it contains ; such as will 
at once feel most strongly the proper motives to pursue the end of their ap- 
pointment, and be most capable to devise the proper means of attaining it. 

Before the ratification of the Articles of Confederation by the last of the f^^^ton^ 
thirteen States on March 1, 1781, a movement had begun to amend the Articles 
in order to make them more adequate for governmental purposes, which, pro- 
longed through a series of years, led to the call of the Constitutional Convention 
which met in Philadelphia in the summer of 1787, an assembly which replaced 
the Articles by a newer and more perfect instrument of government called the 
Constitution, under which the United States on the one hand and the States on 
the other have waxed great and have prospered. The Congress recognized 
that the work of its hands was imperfect, but its members felt that the Articles 
of Confederation embodied all of the concessions from the States which they 
could obtain at that time, and they did not recognize, perhaps, before expe- 
riencing them, the defects of that instrument of government which is known 
as the Articles of Confederation. 

Jonathan Elliot, to whom we are under the deepest obligation for his 
Debates in the State Conventions on the adoption of the Federal Constitution, 
and the debates in the Convention itself, entitled the section devoted to the 
period between the ratification of the Articles and the call of the Convention, 
" Proceedings which led to the Adoption of the Constitution of the United 
States." ^ And in this section he enumerates four proposals, which failed — Four 
but they may be termed happy failures, for it is because of them that the call tha't''Fliild 
went out for a convention which framed the more perfect Union. These four 
are: 

First, the proposal to amend the eighth of the Articles of Confederation, in 

^ Jonathan Elliot, Tlie Debates in the Several State Conventions on the Adoption of the 
Federal Constitution, 1836, Vol. i. pp. 92-120. 



54 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

order to base the quotas upon population which the States should contribute 
to the government rather than upon the value of the realty in each of the 
States ; 

Second, a proposal to authorize the Congress to levy a duty of five per 
cent, ad valorem upon all goods, wares, and merchandise of foreign growth 
and manufacture imported into the United States after the 1st day of May, 
1781, and to authorize the United States to levy a like duty of five per cent, 
on all prizes and prize goods condemned in the court of admiralty of any of 
the States, in order that the revenues arising therefrom should be used to dis- 
charge the principal and interest of the debts contracted or which should be 
contracted on the faith of the United States during the " present war " ; 

Third, a proposal to invest the United States with the power to levy duties 
upon certain specified goods imported into the United States from any foreign 
port, island or plantation during a period of twenty-five years, to raise from 
the States for a period of twenty-five years a revenue of $1,500,000 annually 
to extinguish the debt contracted on the faith of the United States according 
to quotas specified in the resolution ; 

Fourth, to amend the Articles of Confederation by investing the United 
States in Congress assembled, for a period of fifteen years, with the power to 
forbid the States to import or to export goods in vessels belonging to nations 
with which the United States did not have treaties of commerce, and to em- 
power Congress, for a like period of fifteen years, to forbid the subjects of 
foreign States residing within the United States to export goods, wares or 
merchandise unless authorized so to do by treaty. 

Finance and commerce were the rocks upon which the little ship of state 
well nigh foundered, but the failure of the States to respond to the recom- 
mendations, indeed we might almost say the prayers, of the Congress led to 
private initiative, in the hope that it might succeed where public initiative had 
failed. The trouble, as we see today, was one that might be remedied with- 
out affecting the rights of the States, by investing the Congress, through its 
own agents, with the power of collecting revenue at the source, in accordance 
with the consent and the authorization of the States. In this way the general 
government would have been able to sue and to collect the revenue from the 
individual, whereas the government could not, under the law of nations, sue 
a sovereign, free and independent State to collect the quotas fixed by the Con- 
gress for the States in accordance with the Articles of Confederation; and the 
States were unwilling to invest the United States in Congress assembled with 
the right to sue the State, and to compel by force, if necessary, compliance 
with its obligations. The framers of the Confederation did not see, because 
they lacked experience, that a provision of this kind would not only provide 
the revenue needed by the general government, but would obviate quarrels and 



A CONFEDERATION OF SOVEREIGN STATES 55 

ill feeling between the States and their citizens, as the State would not need, 
for the purpose of the Union, to thrust its hand into the pockets of its citizens. 

This matter has never been put more clearly than by Alexander Hamilton 
in his speech in the New York Convention advocating the ratification of the 
Constitution. " It has been observed," he said, that " to coerce the states is 
one of the maddest projects that was ever devised." And he asked, " can we 
believe that one state will ever suffer itself to be used as an instrument of 
coercion ? " In his opinion, and Hamilton was no advocate of state rights, 
it could not be done, and it should not be tried. " The thing is a dream," he 
said, " it is impossible." On the theory of government which had been tried 
and found wanting, he added, " Then we are brought to this dilemma — either 
a federal standing army is to enforce the requisitions or the federal treasury 
is left without supplies, and the government without support." What was to 
be done, or as he expressed it in the language of debate: " What, sir, is the 
cure for this great evil?" This question he answered, in such a way as to 
show not merely the nature of the solution but the solution itself : " Nothing, 
but to enable the national laws to operate on individuals, in the same manner 
as those of the states do. This is the true reasoning upon the subject, sir." ^ 

But to return to the role of private initiative in the creation of the more 
perfect Union. The situation of the States in matters of commerce was 
that which would arise between sovereign, free and independent States in 
which there was not a customs union, such as the German States were wise 
enough to conclude in the middle of the 19th Century. As stated by a keen- 
eyed observer of the period: "The states," Mr. Madison said, "having no 
convenient ports for foreign commerce, were subject to be taxed by their 
neighbors, thro' whose ports, their commerce was carried on. New Jersey, 
placed between Phil" & N. York, was likened to a cask tapped at both ends ; 
and N. Carolina, between Virg* & S. Carolina to a patient bleeding at both 
Arms." ^ The Congress foresaw the consequences of such a condition, and 
had already laid it before the States, but without avail, in the following impres- 
sive language : 

The situation of commerce at this time claims the attention of the several 
states, and few objects of greater importance can present themselves to their 
notice. The fortune of every citizen is interested in the success thereof ; 
for it is the constant source of wealth and incentive to industry ; and the 
value of our produce and our land must ever rise or fall in proportion to the 
prosperous or adverse state of trade.^ 

Private initiative supplied the remedy. Maryland and Virginia were in- ] 
terested in the navigation of Chesapeake Bay and its tributaries and they had 
come to a satisfactory working agreement in the matter. But Pennsylvania 

1 Elliot, Debates, Vol. ii, pp. 232, 233. 

2 Writings of Madison, Hunt ed., Vol. ii, p. 395. 

3 Elliot, Debates, Vol. i, p. 107. 



56 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Convention 
at Annapolis 



Another 

Conventio; 

Proposed 



and Delaware were likewise interested parties, either as bordering on the Bay 
and its tributaries or as affected by their regulation. In a less degree all the 
States were interested in as far as they were affected, whereas the adjoining 
States were primarily concerned. Hence, it occurred to Mr. Madison to have 
Virginia propose a meeting of delegates of the States, in order to see what 
could be done or what could be proposed to better conditions in that matter 
of trade and commerce. Therefore, on January 21, 1786, the Virginia legis- 
lature appointed certain persons, among whom may be mentioned Edmund 
Randolph, James Madison and George Mason, as commissioners to " meet 
such commissioners as may be appointed by the other states in the Union, at a 
time and place to be agreed on, to take into consideration the trade of the 
United States ; to examine the relative situation and trade of the said States ; 
to consider how far a uniform system in their commercial regulations may be 
necessary to their common interest and their permanent harmony; and to re- 
port to the several states such an act relative to this great object as, when 
unanimously ratified by them, will enable the United States in Congress assem- 
bled effectually to provide for the same; that the said commissioners shall 
immediately transmit to the several states copies of the preceding resolution, 
with a circular letter requesting their concurrence therein, and proposing a 
time and place for the meeting aforesaid." ^ 

In response to this invitation — for which there was no authority in the 
Articles of Confederation, and indeed there had been no authorization for the 
action of Maryland and Virginia in regulating their interests in the Chesa- 
peake and its tributaries — issued by the State of Virginia, nine States ap- 
pointed delegates to meet at Annapolis on the first Monday in September, 
1786. When the day came delegates had arrived only from the five States 
of New York, New Jersey, Pennsylvania, Delaware and Virginia ; but among 
these delegates were well known names — Alexander Hamilton and Egbert 
Benson of New York, William Patterson of New Jersey, John Dickinson of 
Delaware, Edmund Randolph and James Madison of Virginia. The distin- 
guished veteran and colonial statesman, John Dickinson, was elected chairman 
of the Convention, which met on September 11, 1786, but in the absence of the 
other States the members present wisely limited themselves to a recommenda- 
tion drafted by Hamilto'n, stating it to be " their unanimous conviction, that 
it may essentially tend to advance the interests of the Union, if the states, by 
whom they have been respectively delegated, would themselves concur, and use 
their endeavors to procure the concurrence of the other states, in the appoint- 
ment of commissioners, to meet at Philadelphia on the second Monday in 
May next [1787], to take into consideration the situation of the United States, 
to devise such further provisions as shall appear to them necessary to render 
1 Elliot, Debates, Vol. i, pp. 115-6. 



A CONFEDERATION OF SOVEREIGN STATES 57 

the Constitution of the Federal government adequate to the exigencies of the 
Union, and to report such an act for that purpose to the United States in 
Congress assembled, as, when agreed to by them, and afterwards confirmed 
by the legislatures of every State, will effectually provide for the same." ^ 

The Convention was somewhat embarrassed in the matter of Congress, as 
the meeting at Annapolis was without its consent and therefore unconstitu- 
tional. As, however, Congress would have to act if the Articles of Confed- 
eration were to be amended " in order to render the Constitution of the Federal 
government adequate to the exigencies of the Union," it would be necessary 
not only to inform the Congress but to have it take appropriate action, in 
accordance with the thirteenth of the Articles of Confederation which pro- 
vided that no " alteration at any time hereafter be made in any of them ; unless 
such alteration be agreed to in the Congress of the United States and be after- 
ward confirmed by the legislatures of every state." The commissioners 
prepared a report to their respective governments, and dealt with the delicate 
congressional situation in the following concluding paragraph : 

Though your commissioners could not with propriety address these ob- 
servations and sentiments to any but the states they have the honor to repre- 
sent, they have nevertheless concluded, from motives of respect, to transmit 
copies of this report to the United States in Congress assembled, and to the 
executive of the other states.* 

Virginia at once took action, agreeing to the convention to be held at ,^ppf"ai'°°^ 
Philadelphia for the purposes specified in the report, and appointed commis- 
sioners or delegates to meet with the delegates of the other States to con- 
sider the revision of the Articles of Confederation. New Jersey, Pennsyl- 
vania, North Carolina, Delaware, and Georgia did likewise; whereupon the 
Congress, seeing that the Convention was to take place, and not unwilling to 
make a recommendation which was likely to be followed, as well as to aid 
in securing for the general government powers which it had repeatedly but 
vainly urged, gave its approval for the call of the convention in the follow- 
ing resolution, adopted February 21, 1787: 

Whereas there is provision, in the Articles of Confederation and Per- 
petual Union, for making alterations therein, by the assent of a Congress of 
the United States, and of the legislatures of the several states ; and whereas 
experience hath evinced that there are defects in the present Confederation; 
as a mean to remedy which, several of the states, and particularly the state of 
New York, by express instructions to their delegates in Congress, have sug- 
gested a convention for the purposes expressed in the following resolution ; 
and such convention appearing to be the most probable mean of establishing 
in these states a firm national government, — 

Resolved, That, in the opinion of Congress, it is expedient that, on the sec- 
ond Monday in May next, a convention of delegates, who shall have been ap- 

i/Wrf., p. 118. 



Union of 
Sovereign 



58 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

pointed by the several states, be held at Philadelphia, for the sole and express 
purpose of revising the Articles of Confederation, and reporting to Congress 
and the several legislatures such alterations and provisions therein as shall, 
when agreed to in Congress, and confirmed by the states, render the federal 
Constitution adequate to the exigencies of government and the preservation of 
the Union." ^ 

Authorized by the Congress, there v^as no reason why the States should 
hesitate, and with the exception of Rhode Island all of the thirteen States then 
composing the Union appointed delegates. They did not reach Philadelphia 
on " the second Monday in May next." It was not until the 25th that the 
delegates of seven States arrived. New Hampshire did not appoint its dele- 
gates until the 27th of June because of a lack of funds necessary to their 
maintenance, and the delegates appointed and accepting the appointment made 
their appearance only late in July, when the -w^ork of the Convention was well 
along, but fortunately in time to share in some of its most important proceed- 
ings. 

It may be disputed whether a union of the States existed in law, although 
Stat" it may have existed in fact, before the 1st day of March, 1781, when the 

Articles of Confederation creating a perpetual Union were ratified by the last 
of the thirteen States upon the signature of the Articles by the delegates of 
Maryland, authorized and directed so to do by that State. There can be no 
doubt, however, that, after that date the thirteen American States formed a 
Confederation and remained confederated until the dissolution of the Con- 
federation by the adoption of the Constitution and the organization of the 
government of the more perfect Union thereunder in 1789. 

The question of the relation of the States to one another and to the Con- 
federation established by the Articles has been the subject of no little debate. 
Yet there seems to be no reasonable doubt on this head, if the language of the 
Articles means what it says and if the decisions of the Supreme Court of the 
United States are entitled to respect. No doubt the States could have merged 
their personality in the Union of their creation, but there is no doubt that 
they did not do so ; for, after stating in the first article that " the stile of this 
Confederacy shall be ' the United States of America,' " the very next article, 
and the first in which the relation of the States is considered, provides that 
" each State retains its sovereignty, freedom, and independence, and every 
power, jurisdiction and right which is not by this Confederation expressly 
delegated to the United States in Congress assembled." 

As in the case of Respuhlica v. Sweers (1 Dallas, 41), decided in 1779, the 
Supreme Court of Pennsylvania considered the States to form a body cor- 
porate from the moment of their association, so in Nathan v. Commonwealth 
of Virginia (1 Dallas, 77, note), decided in the September term of 1781, 

1 Elliot, Debates. Vol. i, p. 120. 



A CONFEDERATION OF SOVEREIGN STATES 59 

within a few months of the final ratification of the Articles of Confederation 
on March 1, 1781, the Supreme Court of Pennsylvania determined that the 
States under the Articles of Confederation were sovereign, free and independ- 
ent States in the sense of international law. In the official report of this case 
it is stated that 

A foreign attachment was issued against the Commonwealth of Virginia, 
at the suit of Simon Nathan ; and a quantity of cloathing, imported from 
France, belonging to that state, was attached in Philadelphia. The delegates 
in Congress from Virginia, conceiving this a violation of the laws of nations, 
applied to the supreme executive council of Pennsylvania, by whom the 
sheriff was ordered to give up the goods. The counsel for the plaintiff, find- 
ing that the sheriff suppressed the writ, and made no return of his proceed- 
ings, obtained, September 20, 1781, a rule that the sheriff should return the 
writ, unless cause was shewn. 

They contended, that the sheriff was a ministerial officer ; that he could 
not dispute the authority of the court out of which the writ issues, but was 
bound to execute and return it at his own peril. 6 Co. 54. That those cases 
in England, where the sheriff was not compelled to return writs issued against 
ambassadors or their retinue, depended upon the stat. 7 Ann., c. 12, which 
did not extend to this state. 

The Attorney-General, on the part of the sheriff, and by direction of 
the supreme executive council, shewed cause, and prayed that the rule might 
be discharged. He premised, that though the several states which form our 
federal republic, had, by the confederation, ceded many of the prerogatives of 
sovereignty to the United States, yet these voluntary engagements did not 
injure their independence on each other; but that each was a sovereign, " with 
every power, jurisdiction, and right, not expressly given up." He then laid 
down two positions. First : that every kind of process, issued against a sov- 
ereign, is a violation of the laws of nations ; and is in itself null and void. 
Second : that a sheriff can not be compelled to serve or return a void writ. 

After elaborate argument by the Attorney General and counsel for plain- 
tiff in support of their respective contentions, " the Court," to quote the 
official report, " held the matter some days under advisement — and at their 
next meeting the President delivered it as the judgment of the court. 

" ' That the rule made upon the sheriff, to return the writ issued against 
the commonwealth of Virginia, at the suit of Simon Nathan, should be dis- 
charged.' " 

To the same effect are the opinions of Chief Justice IMarshall in the lead- 
ing case of Sturges v. Crowninshicld (4 Wheaton, 192), decided in 1819, in 
which that eminent jurist said: 

It must be recollected, that previous to the formation of the new constitu- 
tion, we were divided into independent states, united for some purposes, but 
in most respects, sovereign. 

And in the leading case of Gibbons v. Ogde.n (9 Wheaton, 1, 187), decided 
in 1824, Chief Justice Marshall again said : 



60 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

As preliminary to the very able discussions of the constitution, which we 
have heard from the bar, and as having some influence on its construction, 
reference has been made to the political situation of these states anterior to 
its formation. It has been said, that they were sovereign, were completely 
independent, and were connected with each other only by a league. This is 
true. 

As far, therefore, as the United States were concerned, they were inde- 
pendent from July 4, 1776; and from March 1, 1781, they formed a Confed- 
eration under the Articles of Confederation and Perpetual Union. As far 
as the outer world was concerned, their independence of Great Britain and 
membership in the society of nations was recognized by treaties with France 
of February 6, 1778, with the Netherlands of October 8, 1782, with Sweden 
of April 3, 1783, and with Great Britain itself of September 3, 1783. The 
Declaration of Independence had ceased to be a hope or a promise; it had 
become a fact, and it was alike the task and the test of the Statesmen of the 
day to secure that form of government which to them and their successors 
should seem most likely to effect their safety and happiness. 



IV 

EARLY BACKGROUNDS OF THE AMERICAN CONSTI- 
TUTION—TRADING COMPANIES 

I do confess I did ever think that trading in companies is most agreeable to the English 
nature, which wanteth that same general vein of a republic which runneth in the Dutch 
and serveth to them instead of a company. (Sir Francis Bacon, l6i6. Letters and Life of 
Francis Bacon, James Spedding, Editor, Vol. v, 1869, p. 259.) 

Their story [The Merchants of the Staple] is the story of the beginning of English 
exports on any considerable scale, and of a system which was devised for the purpose. 
The main interest of the system lies in tlie fact that the Government worked through 
private merchants, and used them as machinery for State purposes. {Sir C. P. Lucas, 
The Beginnings of English Overseas Enterprise, 1917, p. 55.) 

Henry by the grace of God King of England and France and Lord of Ireland, to all 
to whom these present letters shall come, greeting. 

Know ye that, . . . 

We, . . . 

Do will and grant, by the tenor of these presents, to the said merchants, that thev may 
freely and lawfully assemble and meet together as often and whensoever they please, 
in some convenient and fitting place, where they shall think good, and that they may 
choose and elect among themselves certain sufficient and fit persons for their governors 
in those parts at their good liking; 

And furthermore we give and grant to the said Governors which are in such sort 
to be chosen by the aforesaid merchants, as much as in us lieth, special power and 
authority to rule and govern all and singular the merchants our subjects remaining in 
those parts and which hereafter shall come and repair to those parts, either by themselves 
or by their sufficient deputies, and to do unto them and every one of them in their causes and 
quarrels whatsoeve.-, whicli are sprung up or shall hereafter spring up among them in the 
parts aforesaid, full and speedy justice, . . . 

And, by the common consent of the aforesaid merchants our subjects, to make and 
establish statutes, ordinances and customs as shall seem expedient in that behalf for the 
better government of the state of the said merchants our subjects. 

And to punish reasonably according to the quantity of their offence in that behalf 
all and singular the merchants our subjects which shall withstand, resist or disobey the 
aforesaid governors so to be chosen, or their deputies, or any of them, or any of the 
aforesaid statutes, ordinances and customs, 

Moreover we do ratify, confirm and approve, and as ratified, confirmed and approved 
we command firmly, and inviolal)ly then to be observed all just and reasonable statutes, 
ordinances and customs which shall be made and established by the said governors, so to be 
chosen in the form aforesaid, . . . (Charter Granted by Henry IV to the English Merchants 
in Holland, Zeeland, Brabant, and Flanders, February 5th, 1406/7, Sir C. P. Lucas, The 
Beginnings of English Overseas Enterprise, 1917, pp. 1S4-186.) 

The Adventurers were given authority to meet at Calais and elect a governor, and " four 
and twenty of the most sad discreet and honest persons of divers fellowships of the said 
Merchants Adventurers " to be his assistants, thirteen to form a quorum. To the governor 
and his deputies, with the twenty-four assistants, was entrusted the power of making laws 
for the fellowship. (Charter of 1505, Sir C. P. Lucas, The Beginnings of English Overseas 
Enterprise, 1917, p. 71.) 

The first embryo of the chartered company is no less important and no less interesting, 
in its bearing upon the Empire that was to be, than the growth and evolution of the 
system. We have seen of what sort was the earliest charter to the Merchant Adventurers. 
It was not a charter to give a trade monopoly, it was a charter to grant a constitution, 
a charter to enable Englishmen sojourning in foreign parts to govern themselves. The 
preamble sets forth the mischief that has occurred and is likely to grow, "through want 
of good and discreet rule and government," unless the king intervenes " for the procuring 

61 



62 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of better government." With this end in view, the charter prescribes that the merchants 
"may freely and lawfully assemble and meet together," when and where they please, to 
elect goveinors "in those parts at their good liking." The governors are empowered to 
rule and administer justice to all English merchants resortmg to those parts, to adjust 
disputes among the English merchants themselves, and disputes between English merchants 
and the merchants of the soil, to punish, to enforce, " and by the common consent of the 
aforesaid merchants our subjects, to make and establish statutes, ordinances and customs 
as shall seem expedient in that behalf for the better government of the state of the said 
merchants our subjects." . . . The one and only object of the charter is better _ govern- 
ment and the way in which better government is to be attained is by granting self- 
government The king knew well, and the merchants knew well, that, given law and 
order En<^lish trade would prosper without government assistance; regulated companies 
were the early companies, regulated trade is what they stood for, as opposed to promiscuous 
and disorderly traffic. The king knew well, and the merchants knew well, that among 
Eno-lishmen the golden road to law and order is to give them definite authority to govern 
themselves, to choose their own rulers and make their own laws. Exactly two hundred 
years later in 1606, the continuous history, of the British Empire beyond the seas began 
with the grant of a royal charter to the Virginia Company; the charter which was given 
to the English merchants in the Low Countries for their better government in 1407 might 
almost have been a model for the founding of English colonies m America. {Sir C. P. 
Lucas, The Beginnings of English Overseas Enterprise, 1917, PP- I49-I5I-) 

In good truth his company was a plentiful, nursery, for the forerunner and ancestor 
of all the chartered companies was the fellowship of the Merchant Adventurers : they 
made the first experiments and took the first risks : " one day still being a schoolmaster 
unto the other," they gradually evolved the machine which built up the British Empire. 
(Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, p. 149.) 

The Merchant Ad\'^nturers had a definite, continuous, working life, in one phase or 
another, from the central years of the Middle Ages till the beginning of the nineteenth 
century. . . . They embodied, to quote Carlyle's words, the English instinct "to expand, 
if it be possible, some old habit or method, already found fruitful, into new growth for 
the new need." Born of a guild, they became, as a regulated company, a guild enlarged 
and expanded to meet wider calls than those of a particular trade in an English city: 
they embodied " the development of national commerce along lines which were familiar 
in municipal life." That continuity, which has been an outstanding feature of English 
character and English history, was at once illustrated and up held by the Merchant Adven- 
turers. ... 

The actual beginnings of the Overseas Empire of Great Britain coincided roughly with 
the beginnings of joint-stock companies, and in the construction of the Empire joint stock 
played a part which can hardly be over-estimated. (Sir C. P. Lucas, The Beginnings of 
English Overseas Enterprise, 1917, pp. 141-143.) 

This third charter of Virginia thus erected the London Trading Company into a body- 
politic, democratic in its organization, with powers vested in a chief executive, a council, 
and an assembly, having full authority to legislate and to establish a form of government 
for the colony confided to its care. 

The charter just described possessed all the essential elements of a written constitu- 
tion. It established a frame of government and distributed executive, judicial, and legis- 
lative functions. It was, however, merely the constitution of an English trading company. 
(J'Villiani C. Morey, The Genesis of a JVriftcn Constitution, Annals of the American Academy 
of Political and Social Science, 1890-91, Vol. I, p. 541.) 

As we trace the various political institutions of the American colonies back to a common 
source we find that they were in the first instance derived from certain powers delegated 
by the English crown and embodied in charters granted to trading companies or pro- 
prietors. The first colonies, whether they were established by the authority of their 
superiors, or whether they were organized by their own independent efforts, acquired a 
form similar to that of the trading company^ In its most primitive and tj'pical form the 
colonial government, like that of the companj', consisted of a governor, a deputy-governor, 
a council of assistants, and a general assembly. In this simple political body there was at 
first little differentiation of functions. The most important business, whether legislative, 
judicial or administrati\e, was performed by, the wlx)le corporate body, assembled in a 
" General Court." JNIatters of minor importance gradually came to be left to the official 
part of the body, that is, the governor, the deputy-governor, and the assistants, sitting to- 
gether under the name of a " Court of Assistants," or " Council." Taking this simple and 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 63 

almost homogeneous political organism as a starting point, it will not be difficult for us to 
trace the growth of those more complex institutions which characterized the later colonies, 
and which became embodied in the first State constitutions. {William C. Morey, The 
First State Constitutions, Annals of the American Academy of Political and Social Science, 
1893, Vol. 4, pt. I, p. 204.) 

These illustrations are, doubtless, sufficient to show that the form of government which 
prevailed in the southern colonies was modelled after that of the parent colony of Virginia, 
which, in turn, was derived from the form of government established by royal charter 
for the London Trading Company; and also that the constitutions of the southern colonies 
came into being, not as the result of mere custom, but as the product of statutory legis- 
lation. 

As we turn to New England we shall see that the typical government of the Northern 
colonies was not patterned after that of a trading company. It was itself the government 
of a trading company. In the case of Virginia, the company, sent out the colony and estab- 
lished a government over it. In the case of Massachusetts, the company became the colony, 
and brought its government with it. (William C. Morey, The Genesis of a Written Con- 
stitution, Annals of the American Academy of Political and Social Science, 1890-91, Vol. I, 
p. 548.) 



CHAPTER IV 

EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION THE TRADING 

COMPANIES 

A DISTINGUISHED staitesman has observed that " as the British Constitu- 
tion is the most subtile organism which has proceeded from . . . progressive 
history, so the American Constitution is . . . the most wonderful work ever 
struck off at a given time by the brain and purpose of man." ^ With this 
commendation of the Constitution the layman is likely to agree, but the his- 
torian would dissent, unless Mr. Gladstone's statement, for it was he who 
made the remark, is to be construed in such a way that the American like 
the British constitution be looked upon as the most subtile organism which 
has proceeded from progressive history. For the fact is that, with the Saxon 
conquest of England, progressive history began in England, and with the 
advent of the first English settler to America, progressive history began in 
America, and the culminations were the unwritten constitution of Great Brit- 
ain on the one hand and the written Constitution of the United States on the 
other. If, however, the constitution of Great Britain were that of America, 
it would not have required the calling of a convention to reduce it to writing, 
and although it was undoubtedly in the minds of those who framed the Amer- 
ican instrument of government, it was not the British constitution of 1787 
but the British constitution as expressed in colonial charters adjusted to 
the conditions and circumstances of the new environment and incorporated 
in the Constitutions of the several independent states of America (to quote the 
title of a Congressional publication of 1781 ^), which formed the firm and 
sure foundation upon which the new structure was reared. 

It is common knowledge that the territories which formed the thirteen 
British colonies, and ultimately the thirteen original States, were settled under 
charters granted by the Crown; that the earliest of these charters, to the Lon- 
don and New England Companies, were in form and content similar to, if 
not identical with the charters granted to the Trading Companies of England, 
of which the East India Company is the most famous and typical example; 

1 William E. Gladstone, Gleanings of Past Years, 1843-78, Vol. i, p. 212. 

2 The Constitutions of the several independent states of America; the Declaration of in- 
dependence; the Articles of confederation between the said states; the treaties between His 
Most Christian Majesty and the United States of America. Published by order of Congress, 
Philadelphia, 1781. 

64 



Genesis 



of Constitu- 
tionality 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 65 

that the form of government developed in Virginia under its charter was 
followed by the colonies south of Mason and Dixon's line; and that the form 
of government developed in Massachusetts under its charter, was followed 
by the colonies to the north of that line. It is important to dwell upon these 
facts, because they show how naturally the framers of the American Con- 
stitution were consciously or unconsciously influenced by generations of colo- 
nial experience and practice to authorize the judicial power of the United 
"States to declare unconstitutional those acts of Congress and of the States 
forming the American union inconsistent with that charter which we call the 
Constitution, just as the courts of the mother-country had from time to time °| supreme 
declared null and void legislation on the part of the colonies in excess of the Que^tiifns 
grants contained in the charters creating these bodies politic. 

In the first volume of his history of INIassachusetts, published in 1764, 
Thomas Hutchinson, then Chief Justice and Lieutenant Governor, and soon 
to become the last Royal Governor of that Commonwealth, said, in speaking 
of the original charter of the colony granted on March 4, 1628 : 

It is evident from the charter that the original design of it was to con- 
stitute a corporation in England, like to that of the East-India and other great 
companies, with powers to settle plantations within the limits of the territory, 
under such forms of government and magistracy as should be fit and neces- 
sary.^ 

More recently Mr. George Cawston, a specialist in such matters and an in- 
corporator of the British South African Company, has said : 

Most of the colonial possessions of this Empire were in the first place 
settled through the agency of Chartered Companies, and that our foreign 
trade and commerce principally originated in the same manner. 

In his interesting and instructive volume entitled The Early Chartered Com- 
panies, Mr. Cawston quotes with approval in the preface that " individuals 
cannot extend society to distant places without forming a compact amongst 
themselves, and obtaining some guarantee for its being observed," to which he 
adds upon his own authority: 

All the old and most successful British colonies in America, Virginia, 
Massachusetts, Connecticut, Rhode Island, Pennsylvania, Maryland, and 
Georgia, which formed the basis of that most wonderful country, the United 
States of America, were founded by individuals whose public spirit, prudence, 
and resolution were not otherwise assisted by the Government of their coun- 
try. The charter from the Crown simply erected each of those bodies of 
individuals into a corporation, with authority required for accomplishing, to 
use the words of several of these charters, " their generous and noble pur- 
pose." ^ 

1 Thomas Hutchinson, The History of the Colony of Massachusets-Bay, 1764, p. 13. 

2 George Cawston and A. H. Keane, The Early Chartered Companies, 1896, Preface, pp. 
vii-viii. 



66 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

In Chapter X of the vokime to which reference has been made, a careful 
and readable account is given of " The Virginia and New England Com- 
panies and Provincial Charters," in the course of which attention is directed 
to a distinction which should have been made by the Crown on its own mo- 
tion, but which was ultimately wrung from the mother country as the result 
of a bitter experience : 

Two And here a distinction should be drawn between charters granted to Eng- 

Charte?s Hsh trading companies, which on the whole were injurious, and charters 

granted to the settlers themselves, which were often beneficial and highly 
prized as legal instruments affording protection against the oppressive or un- 
constitutional measures of the Crown and the provincial Governors. In gen- 
eral it may be said that charters of this second category should alone have 
been granted, or at least the others should have been withdrawn as soon as 
the colonists felt themselves strong enough for self-government. Indeed, 
there was a natural tendency in this direction, and the control of the trading 
associations was ultimately everywhere replaced by representative assemblies. 
But the change was not always effected without considerable friction, 
which was due to the fact that the Home Government was slow to recognize 
the true relations that ought to have prevailed from the first between the col- 
onies and the mother country. Those colonies were, and should have been 
regarded as, mere extensions of England beyond the seas, as Professor Seeley 
has clearly shown in his ' Expansion of England,' and had this patent fact 
been grasped by the ruling classes in the eighteenth century, there need, per- 
haps, never have been an American Revolution.^ 

The settlers in the new world were therefore bound to be familiar with 
corporations, the characteristics of which are stated by Mr. Stewart Kyd, a 
contemporary of the framers of the Constitution, in his treatise on the law of 
corporations, published in 1793-4, shortly after the Constitution of the 
United States went into efifect. Mr. Kyd, dating the second of the two vol- 
umes from the Tower, to which he had been committed on a charge of high 
treason because of his liberal views — more unfashionable then than they 
are today — thus speaks of corporations: 

Corpora- Among the institutions of almost all the states of modern Europe, but 

among none more than those of England, many of these collective bodies of 
men, under the names of bodies politic, bodies corporate, or corporations, 
make a conspicuous figure. 

At their first introduction, they were little more than an improvement on 
the communities which had grown up imperceptibly, without any positive 
institution ; and, for a considerable period, the shade which separated the 
one from the other, was of a touch so delicate as to require the most minute 
attention, and the most discerning eye, to distinguish. 

One essential characteristic of a corporation is an indefinite duration, by 
a continued accession of new members to supply the place of those who are 
removed by death, or other means, which, in the language of the law, is called 
perpetual succession: . . . 

1 Cawston and Keane, The Early Chartered Companies, pp. 198-9. 



tions 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 67 

It is another characteristic of a corporation, that it is capable in its col- 
lective capacity of possessing property, and transmitting it in perpetual suc- 
cession; . . . 

A third characteristic of a corporation is, that the members of which it is 
composed, are subject to common burthens; . . . 

Another characteristic of a corporation is, that it may sue and be sued in 
its collective capacity; . . . 

And after stating what he calls the essentials, he continues: 

A CORPORATION then, or a body politic, or body incorporate, is a col- 
lection of many individuals, united into one body, under a special denomina- 
tion, having perpetual succession under an artificial form, and vested, by the 
policy of the law, with the capacity of acting, in several respects, as an in- 
dividual, particularly of taking and granting property, of contracting obliga- 
tions, and of suing and being sued, of enjoying privileges and immunities in 
common, and of exercising a variety of political rights, more or less extensive, 
according to the design of its institution, or the powers conferred upon it, 
either at the time of its creation, or at any subsequent period of its exist- 
ence.^ 

The views which Mr. Kyd expressed and which were no doubt shared by 
American lawyers of his day were, it is believed, also the views of the early 
settlers ; and these views were based upon reported cases decided by English 
Judges during the period of American colonization. Thus, Sir Henry Hobart, 
" a most learned, prudent, grave and religious Judge," Attorney General from 
1606-13, when the early American charters were granted, and Chief Justice 
of the Court of Common Pleas from the latter date to his death in 1625, said 
in the case of Norris v. Stops (Hobart, 211), decided in 1617: 

Now I am of opinion, that though power to make laws, is given by spe- By-Laws 
cial clause in all incorporations, yet it is needless ; for I hold it to be included 
by law, in the very act of incorporating, as is also the power to sue, to pur- 
chase, and the like. For, as reason is given to the natural body for the gov- 
erning of it, so the body corporate must have laws as a politick reason to 
govern it, but those laws must ever be subject to the general law of the realm 
as subordinate to it. And therefore though there be no proviso for that 
purpose, the law supplies it. And if the King in his letters patents of incor- 
poration do make ordinances himself, as here it was (as aforesaid) yet they 
are also subject to the same rule of law. 

In his treatise on the law of corporations Mr. Kyd laid it down that " not only 
all bye-laws must be reasonable and consistent with the general principles of 
the law of the land " for which Lord Hobart's authority is sufficient, but also 
" their reasonableness and legality must be determined by the Judges in the 
Superior Courts when they are properly before them"; for which statement 
the learned author invoked the authority of the Master and Company of 
Pramework-Knitters v. Green (1 Lord Raymond, 114), decided in 1695, in 
which it was said by the Justices that " members of corporations are not bound 

1 Stewart Kyd, A Treatise on The Law of Corporations, 1793, Vol. i, pp. 2, 3-4, 7, 10, 13. 



68 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to perform by-laws unless they are reasonable, and the reasonableness of them 
is examinable by the Judges." 

Finally, for present purposes, another quotation may be made from Kyd, 
as it is material to the subject in hand. Thus he says : 

When the corporate body has a jurisdiction over certain limits, a bye-law 
made by them for the public good, and whose object is general without being 
limited to people of any particular description, binds every body coming within 
the limits of the jurisdiction, whether strangers or members of the corporate 
body [Brownl. and Goulds, 179] ; for every man, says Holt, who comes within 
the limits of the local jurisdiction of a corporation, must take notice of their 
bye-laws at his peril [Per Holt, Skin. 35].^ 

The charter granted territory within which the trading companies should 
operate. It incorporated certain persons, making of them and their suc- 
cessors a body politic, providing for a governor or treasurer, whom we today 
would call a president or chairman ; for a general court, council, or assistants, 
whom we today would call a board of directors ; and a more numerous body 
of persons declared to be " free of the company," whom we would today call 
stockholders in a company engaged in a common venture upon a joint capital, 
but who would be tradesmen in a trading company, where each member acted 
individually, not jointly. 

The nature of this process, its development and its consequences are thus 
stated by Messrs. Cawston and Keane in their work on The Early Chartered 
Companies: 

Develop- The trading associations that were now springing up and clamouring for 

TrTding the aegis of ' the most high, mightie and magnificent Empresse Elizabeth ' 

Companies were Constituted on two distinct principles. First in the natural and actual 

order came the so-called Regulated Companies, which were suitable to the 
first efforts of the nation to acquire a share of the world's trade, but destined 
eventually to be superseded by the far more powerful and efficient Joint- 
Stock Companies. For a long time all belonged to the first category, and even 
so late as the end of the seventeenth century there existed in England only 
three founded on the joint-stock principle, although these three — the East 
India, the Royal African, and the Hudson Bay — were perhaps more im- 
portant than all the rest put together. 

In the ' regulated ' companies, at that time chiefly represented by the Rus- 
sia, the Turkey, and the Eastland, every member or * freeman ' traded 
solely on his own account, subject only to the ' regulations ' of the associa- 
tion. In fact, they may be regarded as growing out of the trade guilds, modi- 
fied to meet the requirements of their more enlarged sphere of action. In the 
guilds each member purchased a license to ply his trade in his own district at 
his personal risk, the guild itself being irresponsible for his liabilities in case 
of failure. On the other hand, he enjoyed all the advantages of membership 
in an incorporated trade, which could not be exercised by outsiders, even 
though residents in the district. In the same way no subject of the Crown 
could trade in any foreign ' district ' where a regulated company was estab- 
lished without first acquiring membership by the payment of a fee.^ 

^Kyd, A Treatise on the Law of Corporations, Vol. ii, p. 104. 
2 Cawston and Keane, Early Chartered Companies, pp. 9-10. " 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 69 

It is thus seen that in the very elements of their constitution the regu- 
lated companies were merely a development of the local guilds adapted for 
trading purposes beyond the seas. The reasons which caused the scales to tip 
on the side of the joint-stock companies are thus stated by the same learned 
authors : 

Then came the time when, with the growth of wealth and experience, these 
» pioneer traders in foreign lands acquired a deeper consciousness of their latent 
powers, a greater sense of their higher destinies, and especially that mutual 
confidence in each other which was needed for the adoption of the joint-stock 
principle. As in the regulated associations each member retained his per- 
sonal independence, and mainly acted on his own account — ' traded on his 
own bottom,' as was the phrase — so, in the 'joint' concerns the individual 
was largely merged in the corporate body, all working together primarily for 
the common good rather than for their direct personal advantage. . . . 

It was by the general adoption of this principle that the great chartered 
companies acquired their enormous expansion, and in some memorable in- 
stances were by the force of circumstances gradually transformed from mere 
commercial associations of Adventurers into powerful political organizations.^ 

On December 31, 1600, Queen Elizabeth granted to George, Earl of Cum- 
berland, and to two hundred fifteen Knights, Aldermen, and Merchants a 
charter whose terms are thus stated in Anderson's Origin of Commerce: 

That, at their own costs and charges, — they might set forth one or more 
voyages to the East Indians, in the country and parts of Asia and Africa, 
and to the islands thereabouts, — divers of which countries, islands, &c. have 
long sithence been discovered by others of our subjects ; — to be one body 
politic and corporate, by the name of. The Governor and Company of Mer- 
chants of London trading to the East Indies; — to have succession ; — to pur- 
chase lands (without limitation;) — to have one Governor, and twenty-four 
persons, to be elected annually, who shall be called Committees, jointly to 
have the direction of the voyages, the provision of the shipping and mer- 
chandize, also the sale of the merchandize, and the management of all other 
things belonging to the said Company. — Sir Thomas Smith, Alderman of 
London, was to be the first Governor, and a Deputy-Governor to be elected in 
a General Court ; both the Governors and all the Committees to take the oath 
of fidelity. — As also, every member shall take an oath, before being admitted, 
to traffic as a freeman of this Company. — The Company . . . may . . . 
freely and solely trade, by such ways and passages as are already found out, 
or which shall hereafter be discovered . . . beyond the cape of Bona Sper- 
anza to the Streights of Magellan, where any traffic of merchandize may be 
used to and from every of them, in such manner as shall, from time to time, 
be limited and agreed on at any public assembly or general court of the Com- 
pany ; any statute, usage, diversity of religion or faith, or any matter, to the 
contrary notwithstanding; so as it be not to any country already possessed 
by any Christian potentate in amity with her Majesty, who shall declare the 
same to be against his or their good liking. — Either the Governor or Deputy 
Governor must always be one in general assemblies, when they may make 
all reasonable laws, constitutions, &c. agreeable to the laws of England, for 

1 Cawston and Keane, Early Chartered Companies, pp. 11-12, 13. 



70 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

their good government, by plurality of voices, and may punish, by fines and 
imprisonment, the offenders against their laws . . . None of the Queen's 
subjects, but the Company, their servants, or assigns, shall resort to India, 
without being licensed by the Company, upon pain of forfeiting ships and 
cargoes, with imprisonment, till the offenders give one thousand pounds bond 
to the Company, not to trade thither again. — Nevertheless, for the encour- 
agement of merchant-strangers and others to bring in commodities into the 
realm, the Queen gives power to the Company to grant licenses to trade to the 
East Indies ; and she promises not to grant leave to any others to trade thither 
during the Company's term, without their consent. The majority of any 
general meeting of the Company may admit apprentices, servants, factors, 
&c. to the fellowship or freedom of the said Company. . . .^ 

Under this charter, the East India Company was formed which, after 
many vicissitudes, became in 1876, the Empire of India. 

In other words the Company consisted of a governor, a deputy governor 
and a committee or council of twenty-four persons. The governor (the first 
being named in the charter) and all other officers were to be chosen in a 
general court or assembly of the whole company; and every member, upon 
admission, was required under oath " to traffic as a freeman of the Company." 
The general assembly, consisting of the governor, the council, and the mem- 
bers of the corporation sitting as a body, was presided over by the governor 
or deputy governor, and the assembly was authorized " to make all reason- 
able laws, constitutions, etc., agreeable to the laws of England for their good 
Governrnent by a plurality of voices " ; and also " to punish by fines and im- 
prisonment the offenders against these laws." 

It is to be observed, in the first place, that this charter for the Asiatic trade 
was granted before an English colony was permanently planted on the main- 
land of America ; and, in the second place, that the company was a body poHtic 
and corporate, possessed of legislative, executive and judicial functions, al- 
though they are not stated separately and in detail. Upon the death of Queen 
Elizabeth in 1603, that great monarch was succeeded by James I of England 
and VI of Scotland, w^ho granted his first charter of Virginia in 1606, six 
years after that of his predecessor to the East India Company, to the vast tract 
of land named in honor of the Virgin Queen, and "this charter, with its 
subsequent modifications," to quote Mr. Morey's illuminating paper on The 
Genesis of a Written Constitution, " may be said to form the beginning of 
the constitutional history of the United States." ^ 

This charter, drawn in first instance by Sir John Popham, Chief Justice 
of the King's Bench, and in final form by Sir Edward Coke, then Attorney 
General, and Sir James Doderidge, Solicitor General, divided, as is well 
known, the North American coast into two parts, assigning the southern por- 

lAdam Anderson, Historical and Chronological Deduction of the Origin of Commerce^ 
Coombe ed., 1790, Vol. ii, pp. 261-2. 

2 Annals of the American Academy of Political and Social Science, 1891, Vol. i, p. 537» 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 71 

tion, between the 34th and 41st degrees of latitude to the London Company, 
and the northern portion, between the 38th and 45th degrees, to the Plymouth 
Company. Each company was to have a council of thirteen members resid- 
ing therein, to be appointed and removed by the Crown. For these two com- 
panies there was to be appointed in England a council of Virginia, consisting 
of thirteen persons, to be appointed by the Crown, and to pass upon and to 
control the actions of the colonies subject to the instructions of the Crown. 

The colonists, whether born in England or in the plantations, were spe- 
cifically endowed with " all Liberties, Franchises and Immunities within any 
of our other Dominions, to all Intents and Purposes, as if they had been 
abiding and born, within this our realm of England, or any other of our said 
Dominions." ^ 

The two colonies overlapped. It was later provided in the charter that 
there should be a space of 100 miles between the colonies planted in accord- 
ance with the charter. The north and the south were thus to be separated 
geographically, as they have been historically. The southern colonies have, 
as a matter of fact, been modeled upon the charter and the institutions of 
Virginia. The northern colonies have been modeled upon the charter of New 
England and its institutions. In their broad lines the development of the two 
sections has been similar, although not identical. 

It is also to be noted that this first charter of Virginia in 1606 is less liberal 
than that of the East India Company, — because James I was more of a be- 
liever in divine right and less of a statesman than Elizabeth, — in that it does 
not contain a grant of legislative power, and subjected the council in the 
colony and the council in England to the royal pleasure, as expressed in the 
King's instructions. 

The settlements under this charter did not thrive. It was an experiment ;^hlrter°^ 
which, within less than three years, had proved defective. Larger powers 
and more specific privileges were requisite. The result therefore was a second 
charter, probably drawn in first instance by Sir Edward Sandys, and in final 
form by Sir Henry Hobart, Attorney, and Sir Francis Bacon, Solicitor Gen- 
eral. Under this second charter the company or association is created a body 
politic, to be known, called and incorporated by the name of " The Treasurer 
and Company of Adventurers and Planters of the City of London, for the first 
Colony in Virginia." The council and treasurer, or any of them, should in 
the future be nominated and chosen " out of the Company of the said Ad- 
venturers, by the Voice of the greater part of the said Company and Adven- 
turers, in their Assembly for that Purpose." The council, under the presi- 
dency of its treasurer or his deputy, was to appoint all " Governors, Officers, 
and Ministers ... fit and needful to be . . . used for the Government of 
1 Thorpe, Charters and Constitutions, Vol. 7, p. 3788 ; Poore, pp. 1891-2. 



72 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the said Colony and Plantation;" and the council should hereafter likewise 
" make, ordain, and establish all Manner of Orders, Laws, Directions, Instruc- 
tions, Forms and Ceremonies of Government and Magistracy, fit and neces- 
sary for and concerning the Government of the said Colony and Plantation." 
The Treasurer and Company " and such Governors, Officers, and Ministers " 
appointed by them for that purpose, should, within the precincts of Virginia, 
" have full and absolute Power and Authority to correct, punish, pardon, 
govern, and rule " the King's subjects residing within the Colony, " accord- 
ing to such Orders, Ordinances, Constitutions, Directions, and Instructions," 
established by the council, and " in Defect thereof in case of Necessity, accord- 
ing to the good Discretion of the said Governor and Officers respectively, as 
well in Cases capital and criminal, as civil, both Marine and other ; So always 
as the said Statutes, Ordinances and Proceedings as near as conveniently may 
be, be agreeable to the Laws, Statutes, Government, and Policy of this our 
Realm of England." ^ 

By this second charter the Company is created a body politic, with legis- 
lative, executive and judicial functions, and the council created by the first 
charter to reside within the colony is displaced by a governor and officers 
invested by the corporation with powers of supervision and control. 

Q^^l^ Time and experience having shown the need of ampler powers, a third 

charter, likewise drafted in first instance by Sir Edward Sandys and finally by 
Sir Henry Hobart, Attorney, and Sir Francis Bacon, Solicitor General, was 
granted in 1612, by virtue of which the London Company received the au- 
thority requisite to plant, develop and cultivate the colony as the Crown had 
and the proprietor should possess. 

c^o^rt Passing over minor matters, such as the grant of the Bermuda Island to 

the Company, the Treasurer and Company of Adventurers and Planters were 
empowered, once a week or oftener at their pleasure, to " hold, and keep a 
Court and Assembly for the better Order and Government of the said Plan- 
tation, and such Things as shall concern the same ; And that any five Persons 
of our Council for the said first Colony in Virginia, for the Time being, of 
which Company the Treasure [r], or his Deputy, to be always one, and the 
Number of fifteen others, at the least, of the Generality of the said Company, 
assembled together in such Manner, as is and hath been heretofore used and 
accustomed, shall be said, taken, held, and reputed to be, and shall be a 
sufficient Court of the said Company, for the handling and ordering, and dis- 
patching of all such casual and particular Occurrences, and accidental Matters, 
of less Consequence and Weight, as shall from Time to Time happen, touch- 
ing and concerning the said Plantation." ^ Here we have a corporation au- 

1 Thorpe, Charters and Constitutions, Vol. 7, pp. 3795, 3797, 3798, 3801 ; Poore, pp. 1893, 
1898, 1899, 1901. 

- Thorpe, ibid., p. 3805 ; Poore, p. 1904. 



Assembly 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 73 

thorized to hold weekly meetings of such members as happened to be present, 
under the presidency of its executive, provided not less than fifteen members 
of the company attend, for the transaction of ordinary matters. 

But the affairs of the company beyond the seas were not ordinary matters, 
and they needed the attention, not of the few who might happen to attend, 
but of the many who should be present and take part in their settlement. 
Therefore, the charter provided for this eventuality in the passage of its text 
immediately succeeding that which has been quoted : 

And that nevertheless, for the handling, ordering, and disposing of Mat- great and 
ters and Affairs of greater Weight and Importance, and such as shall or may, couru 
in any Sort, concern the Weal Publick and general Good of the said Company 
and Plantation, as namely, the Manner of Government from Time to Time to 
be used, the ordering and Disposing of the Lands and Possessions, and the 
settling and establishing of a Trade there, or such like, there shall be held 
and kept every Year, upon the last Wednesday, save one, of Hillary Term, 
Easter, Trifiity, and Michaelmas Terms, for ever, one great, general, and sol- 
emn Assembly, which four Assemblies shall be stiled and called, The four 
Great and General Courts of the Council and Company of Adventurers for 
Virginia; In all and every of which said Great and General Courts, so as- 
sembled, our Will and Pleasure is, and we do, for Us, our Heirs and Succes- 
sors, for ever, Give and Grant to the said Treasurer and Company, and their 
Successors for ever, by these Presents, that they, the said Treasurer and 
Company, or the greater Number of them, so assembled, shall and may have 
full Power and Authority, from Time to Time, and at all Times hereafter, 
to elect and chuse discreet Persons, to be of our said Council for the said first 
Colony in Virginia, and to nominate and appoint such Officers as they shall 
think fit and requisite, for the Government, managing, ordering, and dispatch- 
ing of the" Affairs of the said Company; And shall likewise have full Power 
and Authority, to ordain and make such Laws and Ordinances, for the Good 
and Welfare of the said Plantation, as to them from Time to Time, shall be 
thought requisite and meet: So always, as the same be not contrary to the 
Laws and Statutes of this our Realm of England; ^ 

Bearing in mind the fact that the third charter confirmed the powers and 
privileges granted by the second, while adding to them in the respects quoted, 
we have at last reached, by three successive steps the charter of the East 
India Company, granted by Queen Elizabeth in 1600, created for profit, with 
the difference that, in addition to the profit from trade, the charter of Vir- 
ginia contemplated the settlement of a plantation and the creation of a colony 
as well. For this purpose the Company was empowered to admit new mem- 
bers, who, when admitted, became entitled to the rights and privileges pos- 
sessed by the other members, thus making it possible for the Company to in- 
clude all persons who should become inhabitants of the colony. Thus, the 
full and general court, assembled as aforesaid, was authorized from time to 
time and for all time to " elect, -choose and admit into their Company, and 

1 Thorpe, Charters and Constitutions, Vol. 7, p. 3805 ; Poore, pp. 1904-5. 



Assembly 



74 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Society, any Person or Persons, as well Strangers and Aliens born in any 
Part beyond the Seas wheresoever, being in Amity with us, as our natural 
Liege Subjects born in any our Realms and Dominions; " and that all such 
persons were thereupon entitled to " have, hold, and enjoy all and singular 
Freedoms, Liberties, Franchises, Privileges, Immunities, Benefits, Profits, and 
Commodities whatsoever, to the said Company in any Sort belonging or ap- 
pertaining, as fully, freely and amply as any other Adventurers now being, or 
which hereafter at any Time shall be of the said Company, hath, have, shall, 
may, might, or ought to have and enjoy the same to all Intents and Purposes 
whatsoever." ^ 

s'^^Xt The settlers scattered themselves throughout the little colony, so that, in 

1619, they might be said to form eleven separate communities, impressed, ap- 
parently, with the desire to assemble, as is declared to be the wont of Eng- 
lishmen. This they did under the authority of the governor of the colony, 
who himself was apparently authorized thereto by a commission executed 
by the Virginia Company in November, 1618, and on July 30, 1619 two mem- 
bers or burgesses from each of the eleven settlements met with the governor 
and council in the little church in Jamestown, forming the first representative 
assembly ever meeting in the New World. 

Two years later, in July, 1621, this action of the governor and of the set- 

LiblrtT'^ ^^^^^ ^"^'^^ specifically confirmed in a formal ordinance, which apparently estab- 

lished in that part of America, now comprised within the United States, the 
American system of Uberty, that is to say, the exercise of political power in 
accordance with and pursuant to the terms of a written document emanating 
from superior authority, whether that document be a charter, an ordinance, 
a statute, a constitution, or whether emanating from a company, the crown, 
or the people. This ordinance, which is appropriatel)'^ called the Constitution 
of the Treasurer, Council and Company in England, created " two Supreme 
Councils in Virginia, for the better Government of the said Colony afore- 
said," 2 for the reasons stated in what may be called the preamble to this 
constitution or instrument of government, and which should be given in their 
language of the first person, as they were doing it directly, not indirectly. 
In so doing the treasurer, council and company declared themselves as " taking 
into our careful Consideration the present State of the said Colony of 
Virginia, and intending, by the Divine Assistance, to settle such a Form 
of Government there, as may be to the greatest Benefit and Comfort of the 
People, and whereby all Injustice, Grievances, and Oppression may be pre- 
vented and kept off as much as possible from the said Colony, have thought 

1 Thorpe, Charters and Constitutions, Vol. 7, p. 3806; Poore, p. 1905. ... 

2 William Stith. History of the First Discovery and Settlement of Virqmta, Sabin ed., 
1865, App. iv, p. 32. 



A Fore 
cast of 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 75 

fit to make our Entrance, by ordering and establishing such Supreme Councils, 
as may not only be assisting to the Governor for the time being, in the Admin- 
istration of Justice, and the Executing of other Duties to this Office belong- 
ing, but also, by their vigilant Care and Prudence, may provide, as well for 
a Remedy of all Inconveniences, growing from time to time, as also for 
the advancing of Increase, Strength, Stability, and Prosperity of the said 
Colony." 

The first, to be called the Council of State, appointed by the Treasurer, 
Council and Company, consisted of the Governor and certam specified per- 
sons, who were directed to " bend their Care and Endeavours to assist the 
said Governor," and to be " always, or for the most Part, residing about or 
near the Governor." ^ The second and the more important body is thus de- 
scribed : 

ThQ other Council, more generally to be called by the Governor, once 
Yearly, and no oftener, but for very extraordinary and important Occasions, 
shall consist, for the present, of the said Council of State, and of two Bur- 
gesses out of every Town, Hundred, or other particular Plantation,, to be 
respectively chosen by the Inhabitants: Which Council shall be called The 
General Assembly, wherein (as also in the said Council of State) all IMatters 
shall be decided, determined, and ordered, by the greater Part of the Voices 
then present ; reserving to the Governor always a Negative Voice. And this 
General Assembly shall have free Power to treat, consult, and conclude, as 
well of all emergent Occasions concerning the Publick Weal of the said Colony 
and every Part thereof, as also to make, ordain, and enact such general Laws 
and Orders, for the Behoof of the said Colony, and the good Government 
thereof, as shall, from time to time, appear necessary or requisite ; . . . 

But as this was an agency of the company, possessed under its charter of cer- 
tain enumerated powers, it could not make a grant to its agent of powers and 
authority greater than it itself possessed. Hence, the general laws and orders 
which should from time to time appear necessary or requisite in behalf of the 
Colony are to be in accordance with the terms of the charter, and accordingly 
the general assembly and the Council of State are required, in the succeeding 
passage, " to imitate and follow the Policy of the Form of Government, Laws, 
Customs, and Manner of Trial, and other Administration of Justice, used in 
the Realm of England, as near as may be, even as ourselves, by his Majesty's 
Letters Patent are required." ^ But as the possessors of limited or enumer- 
ated powers are wont to construe them so liberally in their own behalf as to 
exceed the grant, there must be some authority to pass upon the exercise of 
such powers and to keep them within the terms of the grant. Therefore, it |f'^'^'^°'^ 
was provided in the succeeding article of the ordinance, " that no Law or Ordi- 
nance, made in the said General Assembly, shall be or continue in Force or 

1 Stith, History of Virginia, App. iv, p. ii. , 

2 Ihid., pp. 33-^4. 



76 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Validity, unless the same shall be solemnly ratified and confirmed, in a Gen- 
eral Quarter Court of the said Company here in England, and so ratified, be 
returned to them under our Seal." And by an act of generosity, possible, in- 
deed, in men of good will but not to be expected from the Crown or that arti- 
ficial person we call the State, it was further provided that " no Orders of 
Court afterwards shall bind the said Colony, unless they be ratified in like 
Manner in the General Assemblies." 

So true it is, as stated by Guizot in his History of Civilization, that, when 
there scarcely remained traces of national assemblies, the remembrance of 
them, of " the right of free men to join together, to deliberate and transact! 
their business together, resided in the minds of men as a primitive tradition! 
and a thing which might again come about." ^ Innocent as these early] 
settlers were of the customs of the primitive Germans, as depicted by Tacitus, 
they were unconscious of the fact that, in meeting together, they were follow-] 
ing the custom of the great assembly in England, known to them and to us by] 
the name of Parliament, the Lords and Commons of which met together and 
transacted their business in a single house for a long period of time. In like 
manner so the governor, council and burgesses continued to meet together. 
However, in 1680, the then governor, " Lord Cole pepper, taking Advantage 
of some Disputes among them," to quote the language of a Virginian historian 
of the day, " procur'd the Council to sit apart from the Assembly; and so they 
became two distinct Houses, in Imitation of the two Houses of Parliament in 
England, the Lords and Commons; and so is the Constitution at this [1705] 
Day." 2 

The powers of the company were resumed by the Crown in 1624. From 
this period until the Revolution the colony was governed under instructions 
from the Crown, as doubtless it would have been under a charter if one had 
again been granted. On this state of afifairs Mr. Morey feels justified in 
saying in his own behalf, and vouching for the truth of it a distinguished 
English authority, who can not be considered as having a thesis to maintain: 

It will be seen that all the essential features of this constitution were a re- 
production of the constitution of the London Company and of its prototype, 
the East India Company, namely : ( 1 ) The three elements of the government 
— the chief executive, the council, and the assembly; (2) the administrative 
and judicial functions of the governor and council; and (3) the legislative 
functions of the governor, council, and freemen united in a single body. The 
only important modifications — namely, the introduction of deputies and the 
granting of the veto power to the governor — were clearly the direct result 
of the peculiar circumstances in which the colony was placed ; the one due 
simply to convenience, and the other to the desire on the part of the company 
to preserve as far as possible its control over the legal acts of the colony.* 

1 F. Guizot, The History of Civilization, 1858, Vol. iii, p. 199. 
2 Robert Beverly, History of Virginia, 1722, p. 203. 
^Annals of the American Academy, 1891, Vol. i, pp. 542-3. 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 



77 



South 



The authority invoked by Mr. Morey is that of George Chalmers, who, 
after mentioning the provisions of the ordinance, says in his Introduction to 
the History of the American Colonies, first pubUshed in 1780: 

" Thus we trace to a commercial company the source of those free sys- 
tems of provincial government, that has distinguished the English colonies 
above all others for their regard for the rights of men. In this famous or- 
dinance, we behold the model from which every future provincial form was 
copied, though varied by difference of circumstance." ^ 

While the experience of Virginia is repeated in all of the colonies, it is but Between 
natural that the southern colonies, including Maryland, should follow more and^ 
closely in the steps of what is affectionately called the Old Dominion, taking 
as their basis a trading company and a political corporation, with the seat of 
authority in England, not in America. The northern colonies, as was also 
natural, followed more closely the experience and the example of Massa- 
chusetts, in which the charter was that of a trading company and of a body 
politic, with the seat of authority in England. The charter was, however, 
transferred to America by the grantees, then apparently possessing what has 
come to be known as Yankee shrewdness, by the simple expedient of appoint- 
ing the governor and officers of the company from those who were about to 
settle and who actually did settle in the colony. Thus in New England the 
colony and the trading company became one and the same. 

It will be recalled that the charter of 1606. granted to the London Com- 
pany, divided the territory in America to which the Crown of Great Britain 
laid claim into two sections, the southern, out of which the southern colonies, 
including Maryland, were primarily carved, and the northern section, within 
which the colonies of New England and what are now the Middle States were 
principally created. The second charter, granted to the London Company in 
1609, excluded the northern section and restricted itself to Virginia, which, 
extensive as it was, occupied but a part of the southern division. In 1620 
the Plymouth Company obtained also a second charter dealing only with the 
northern division, which, as stated, had been separated by the second charter 
to the London Company granted eleven years previously. 

The second charter of the Plymouth Company is similar to although not 
identical with the second of the London Company. It possesses in general 
the same powers and authority, which, however, are separately analyzed. By 
this charter the Plymouth Company became the Council of Plymouth for New 
England, and the starting point for the colonies of New England, and for 
the Middle States which followed, as it were, in its wake. 

After reciting the grant of the Virginia charter of 1606 and the subse- 

1 George Chalmers, Introduction to the History of the Revolt of the American Colonies, 
1845, Vol. i, pp. 16-17. 



Company 



78 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

quent separation of the London and Plymouth Companies under the charter 
of 1609, the patent vests in the members of the Company the territory from 
sea to sea lying between the 40th degree — which, it may be said, passes 
through the present city of Philadelphia — and the 48th degree of North 
Latitude; and the territory was henceforth to be known by the name of New 
Plymouth England in America. For the better planting and governing of New Eng- 

land, a body politic and corporate was created in the English town of Plymouth 
in the county of Devon, to consist of forty persons and to be known by the 
name of the Council established in Plymouth in the County of Devon " for 
the planting, ruling, ordering, and governing of New-England, in America." 
The council was authorized to fill vacancies in its membership, to receive, hold 
and dispose of realty and personal property, and, as a body corporate, to sue 
and be sued, and to elect from their members a president, to hold office during 
their pleasure. The council was also authorized in its discretion to admit 
such persons as they should think fit " to be made free and enabled to trade 
. . . unto . . . New-England . . ., and unto every Part and Parcell thereof, 
or to have . . . any Lands or Hereditaments in New-England . . .," accord- 
ing to such rules and regulations as the council might be pleased to estab- 
lish in pursuance of the powers contained in the patent. In addition, the 
charter specifically granted full power and authority to the council to " nomi- 
nate, make, constitute, ordaine, and confirme by such Name or Names, Sale 
or Sales, as to them shall seeme Good; and likewise to revoke, discharge, 
change, and alter, as well all and singular. Governors, Officers, and Ministers, 
which hereafter shall be by them thought fitt and needful to be made or used, 
as well to attend the Business of the said Company here, as for the Govern- 
ment of the said Collony and Plantation, and also to make ... all Manner 
of Orders, Laws, Directions, Instructions, Forms, and Ceremonies of Govern- 
ment and Magistracy fitt and necessary for and concerning the Government 
of the said Collony and Plantation, so always as the same be not contrary 
to the Laws and Statutes of this our Realme of England, and the same att all 
Times hereafter to abrogate, revoke, or change, not only within the Precincts 
of the said Collony, but also upon the Seas in going and coming to and from 
the said Collony, as they in their good Discretions shall thinke to be fittest for 
the good of the Adventurers and Inhabitants there." ^ The governors, officers 
and ministers to be appointed by the council were authorized and empowered, 
and the council, governors, officers and ministers, appointed by the council, 
were authorized, according to the nature and limits of their offices " within 
the said Precincts of New-England ... to correct, punish, pardon, governe, 
and rule all such ... as shall from time to time adventure themselves in any 
Voyage thither, or that shall att any Time heerafter inhabit in the Precincts 

1 Thorpe, Charters and Constitutions, Vol. 3, pp. 1831-33; Poore, p. 925. 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 79 

or Territories of the said Collony as aforesaid, according to such Laws, Orders, 
Ordinances, Directions, and Instructions as by the said Councill aforesaid 
shall be established ; and in Defect thereof, in Cases of Necessity, according to 
the good Discretions of the said Governors and Officers respectively, as well 
in Cases capitall and criminall, as civill, both marine and others, so allways 
as the said Statutes, Ordinances, and Proceedings, as near as conveniently 
may be, agreeable to the Laws, Statutes, Government and Policie of this our 
Realme of England." ^ After providing that unauthorized persons should not 
enter upon and dwell within the precincts and territory of New England, and 
that if they so do they may be proceeded against and expelled therefrom, it 
was finally provided, insofar as material to the present purpose, that " all 
and every the Persons, beinge our Subjects, which shall goe and inhabitt 
within the said Collony and Plantation, and every of their Children and 
Posterity, Avhich shall happen to be born within the Limitts thereof, shall 
have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens 
and naturall Subjects within any of our other Dominions, to all Intents and 
Purposes, as if they had been abidinge and born within this our Kingdome 
of England, or any other our Dominions." - 

Within a few years after this patent, settlements were made in the 
territory adjoining Massachusetts Bay, and, desiring to regularize their con- 
dition and to set up for themselves, they obtained a grant for a land and 
trading company. Wishing, however, to have their venture confirmed by 
the highest authority, they applied to the Crown to confirm their patent, to 
which were added powers of government by the royal charter of ^larch 4, 
1628-9. This first charter of Massachusetts was the third royal charter for 
New England, just as the Virginia charter of 1611-12 was the third royal 
charter for that portion of America, and, like it, so similar in terms that a 
reference to the summary of that charter would suffice, were it not for the 
importance of the colony whereof it was the charter and of the group of col- 
onies to the north of Maryland. 

After a recital of the patent of 1620 to the Council of New England, and 
the grant by that Council to the Land and Trading Company of 1627-8, both 
of which were confirmed by the present charter, the grantees and " all such 
others as shall hereafter be admitted and made free of the Company and 
Society hereafter mencded," were created " one Body corporate and politique 
in Fact and Name, by the Name of the Governor and Company of the Matta- 
chusetts Bay in Newe-England,'" by which name they were to have perpetual 
succession, to plead and be impleaded, to sue and to be sued, and to maintain 
actions " of what kinde or nature soever," and authorized to " acquire . . . 

1 Thorpe, Charters and Constitutions. Vol. 3, p. 1832 ; Poore, pp. 925-6. 

2 Thorpe, ibid., p. 1839 ; Poore, p. 930. 



80 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

any Landes, Tenements, or Hereditaments, or any Goodes or Chattells," with 
power to dispose thereof " as other our Hege People of this our Realme of 
England, or any other corporacon or Body politique of the same may law- 
fully doe." ^ 

In order to effect the purpose for which the colony was created, " one 
Governor, one Deputy Governor, and eighteene Assistants . . ., to be from 
tyme to tyme . . . chosen out of the Freemen of the saide Company, for the 
tyme being," it was provided that the officers should " applie themselves to take 
Care for the best disposeing and ordering of the generall buysines and Affaires 
of . . . the saide Landes and Premisses . . ., and the Plantacion thereof, 
and the Government of the People there." The charter thereupon appointed 
and mentioned by name the first governor, the deputy governor, and the assist- 
ants, to hold office for such time and in such manner as subsequently specified 
in the charter, empowering the governor or deputy governor to call together 
the members of the company so assembled. After authorizing the governor 
or deputy governor to call together the company, the charter then provides 
that the governor, deputy governor and assistants " shall or maie once every 
Moneth, or oftener at their Pleasures, assemble and houlde and keepe a 
Courte or Assemblie of themselves, for the better ordering and directing of 
their Affaires." ^ Seven or more assistants, with the governor or deputy 
governor, were to constitute a sufficient court. 

For the larger and more important matters, as in the case of the third 
charter of Virginia, a general assembly was to be held four times a year, to be 
styled " the foure greate and generall Courts of the saide Company," which 
assembly, to be composed of the governor, or in his absence of the deputy 
governor, and of the assistants and at least six assistants or the freemen pres- 
ent, or the greater part of them, " shall have full Power and authoritie to 
choose, nominate, and appointe, such and soe many others as they shall thinke 
fitt, and that shall be willing to accept the same, to be free of the said Com- 
pany and Body . . . and to elect and constitute such Officers as they .shall 
thinke fitt and requisite " for the transaction of the affairs of the governor 
and company. The assembly was to possess, in addition, the attribute of sov- 
ereignty " to make Lawes and Ordiiinces for the Good and Welfare of the 
saide Company, and for the Government and ordering of the saide Landes 
and Plantacon and the People inhabiting and to inhabite the same, as to 
them from tyme to tyme shalbe thought meete, soe as such Lawes and Ordi- 
nances be not contrarie or repugnant to the Lawes and Statuts of this our 
Realme of England." 

The charter thereupon provided that officers of the Company were to be 

1 Thorpe, Charters and Constitutions, Vol. 3, p. 1852 ; Poore, p. 936. 

2 Thorpe, ibid., pp. 1852-53 ; Poore, p. 937. 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 81 

elected annually in the meeting of the general court or assembly held at Easter, 
and authority is given to fill by a majority of voices vacancies caused either by 
death, resignation or removal for cause; that the officers so appointed were 
required, before undertaking their duties, to take an oath for their faithful 
performance ; that oaths of supremacy and allegiance were to be taken by all 
prospective colonists; that the colonists and their children, whether born in 
England or in the colonies, were invested with all the liberties and immunities 
of subjects in any of the British dominions as if born within England. There- 
upon follows the specific authorization to the governor or deputy governor, 
assistants and freemen of the company assembled in one joint court 

or in any other Courtes to be specially sumoned and assembled for that 
Purpose, or the greater Parte of them . . . from tyme to tyme, to make, 
ordeine, and establishe all Manner of wholesome and reasonable Orders, 
Lawes, Statutes, and Ordifinces, Direccons, and Instruccons not contrarie to 
the Lawes of this our Realme of England, aswell for setling of the Formes and 
Ceremonies of Governm^ and Magistracy, fitt and necessary for the said 
Plantacon, and the Inhabitants there, and for nameing and stiling of all sorts 
of Officers, both superior and inferior, which they shall finde needefull for 
that Governement and Plantacon, and the distinguishing and setting forth of 
the several! duties. Powers, and Lymytts of every such Office and Place, and 
the Formes of such Oathes warrantable by the Lawes and Statutes of this our 
Realme of England as shalbe respectivelie ministred vnto them for the Ex- 
ecucon of the said severall Offices and Places : as also, for the disposing and 
ordering of the Eleccons of such of the said Officers as shalbe annuall, and of 
such others as shalbe to succeede in Case of Death or Removeall, and min- 
istring the said Oathes to the newe elected Officers, and for Imposicons of 
lawfull Fynes, Mulcts, Imprisonment, or other lawful! Correccon. according 
to the Course of other Corporacons in this our Realme of England, and for 
the directing, ruling, and disposeing of a!! other Matters and Thinges, whereby 
our said People, Inhabitants there, may be soe religiously, peaceablie, and 
civilly governed, as their good Life and orderlie Conversation maie wynn 
and incite the Natives of [that] Country to the Knowledg and Obedience of 
the onlie true God and Sauior of Mankinde, and the Christian Fayth, which 
in our Royal! Intencon. and the Adventurers free Profession, is tlie principal! 
Ende of this Plantacion.^ 

Inasmuch as the provisions of this charter speak for themselves, it does 
not seem necessary to comment upon them further than to say that the grant 
constitutes the grantees, and such persons as they should admit to the com- 
pany, its representatives in legislative, executive and judicial matters, in 
accordance with the terms of the charter, with the usual provision that all 
action should be in conformity with the laws and customs of England. Un- 
der this charter a local government, known as " London's Plantation in Massa- 
chusetts Bay in New England " was established at Salem under the direction 
of John Endicott. Shortly thereafter, in 1630, the charter and government 

1 Thorpe, Charters and Constitutions, Vol. 3, p. 1857; Poore, p. 940. 



Growth 



sentative 
Institutions 



82 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATIO:; 

of the colony were transferred to America, the local government was discon- 
tinued, and remained in effect until the charter was annulled in 1684, which, 
however, was replaced by a royal charter in 1691 after the expulsion of James 
II, granting substantially the same rights and privileges, with the exception 
that the governor was hereafter to be appointed by the Crown instead of 
elected by the Assembly, as under the previous charter. 
senuXr There is an interesting passage in Mr. Hutchinson's History of the Colony 

of MassacJmsets-Bay in which that devoted son of New England and accurate 
historian traces the origin and growth of representative institutions in the Bay 
Colony. " The people," he says, " began to grow uneasy, and the number of 
freemen being greatly multiplied, an alteration of the constitution seems to 
have been agreed upon or fallen into by a general consent of the towns, for 
at a general court for elections, in 1634, twenty- four of the principal inhab- 
itants appeared as the representatives of the body of freemen, and before 
they proceeded to the election of magistrates, the people asserted their right to 
a greater share in the government than had hitherto been allowed them, and 
resolved, ' That none but the general court had power to make and establish 
laws or to elect and appoint officers, as governor, deputy governor, assistants, 
treasurer, secretary, captains, lieutenants, ensigns, or any of like moment, or 
to remove such upon misdemeanor, or to set out the duties and powers of 
these officers — That none but the general court hath power to raise monies 
and taxes, and to dispose of lands, viz. to give and confirm proprieties.' " ^ 
Mr. Hutchinson states that after these resolutions they proceeded to the elec- 
tion of magistrates and that they further determined " That there shall be 
four general courts held yearly, to be summoned by the governor for the time 
being, and not to be dissolved without the consent of the major part of the 
court — That it shall be lawful for the freemen of each plantation to chuse 
two or three before every general court, to confer of and prepare such busi- 
ness as by them shall be thought fit to consider of at the next court, and 
that such persons, as shall be hereafter so deputed by the freemen of the 
several plantations to deal in their behalf in the affairs of the commonwealth, 
shall have the full power and voices of all the said freemen derived to them 
for the making and establishing of laws, granting of lands, &c. and to deal 
in all other affairs of the commonwealth, wherein the freemen have to do, the 
matter of election of magistrates and other officers only excepted, wherein 
every freeman is to give his own voice." Mr. Hutchinson vouchsafes a fur- 
ther reason for this action on the part of the early settlers, saying : " The free- 
men were so increased, that it was impracticable to debate and determine mat- 
ters in a body, it was besides unsafe, on account of the Indians, and prejudicial 
to their private affairs, to be so long absent from their families and business, 

1 Hutchinson, History of the Colony of Massacliusetfs-Bay, pp. 35-6. 



I 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 83 

SO that this representative body was a thing of necessity, but no provision had 
been made for it in their charter." Anticipating Sir John Seeley's happy 
remark that it is in the nature of Englishmen to assemble, he comments on 
this incident, rightly connecting it with that of Virginia, for from the action 
of these two colonies representative government in the western world is to 
be dated : " Thus they settled the legislative body which, except an alteration 
of the number of general courts which were soon reduced to two only in a 
year, and other not very material circumstances, continued the same as long 
as the charter lasted. This I suppose was the second house of representatives 
in any of the colonies. There was, as has been observed, no express provi- 
sion for it in the charter, they supposed the natural rights of Englishmen 
reserved to them, implied it. In Virginia, a house of burgesses met first in 
May 1620. The government in every colony like that of the colonies of old 
Rome may be considered as the efHgies parva of the mother State." ^ 

As in the case of Virginia for a period the two houses sat together, so in 
Massachusetts they were together for ten j'ears, when a separation took place 
for the reasons and with the results stated by Mr. Hutchinson : " About this 
time there was another struggle for power between the assistants or magis- 
trates, and the deputies. The latter could not bear their votes should lose their 
effect by the non-concurrence of the former who were so much fewer in num- 
ber; but, by the firmness of Mr. Winthrop. the assistants maintained their 
right at this time, and (March 25, 1644) the deputies, not being able to prevail, 
moved that the two houses might sit apart, and from that time votes were 
sent in a parliamentary way from one house to the other, and the consent 
of both was necessary to an act of the court." ^ 

Thus, the colony of Virginia, under the charter of a trading company with Ma^achus'etts 
its governing body in the home country, and the colony of Massachusetts, un- compaVed 
der the charter of a trading company with its seat of government in the col- 
ony, provided the same course of development, the one serving as a model 
for what may be called the southern colonies, and the other for those which, 
in comparison, may be called the northern colonies. In each case a charter 
created a body politic, empowered to make laws for the government of the 
inhabitants, conforming as far as possible to the laws, customs and institu- 
tions of England. In each case a governor, supplied with a council or assist- 
ants, was the executive. A legislature in each came into being, sharing with 
the council the making of laws in common, and in each case separate but 
nevertheless sharing in the responsibilities of government. In each case the 
authorization was a written instrument, a charter or a constitution, within 
which the actions of the colony were lawful and beyond which their actions, 

' Hutchinson, History of the Colony of Massachusets-Bay, p. 37. 
2 Ibid., p. 143. 



84 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



New Instru- 
ments of 
Government 
Reverted 
to Charters 



whether executive, legislative or judicial were unlawful as in excess of the 
grant. ^ 

We of today should say it was to be expected that the colonies would, when 
they had broken with the mother country, fashion their future according to 
their own desires, and that in so doing they would revert to written charters 
in which the rights of governors and governed were stated in clear and un- 
mistakable terms. This, with the exception of Connecticut and Rhode Island, 
the thirteen colonies did when they declared themselves to be independent 
States. This the States did when they confederated for the first time, 
drafting Articles of Confederation in their Congress, to be binding upon all 
when ratified by each. This representatives of the States did, assembled in the 
Federal Convention in Philadelphia, in 1787, when they formed a more perfect 
Union than that of the Confederation, in that charter of the Union and of the 
States which we call the Constitution, defining the rights of the Union and of 
the States and of the peoples of the States, with courts of justice to pass upon 
the acts of each, holding them valid when within the grant, holding them 
invalid when beyond the grant, just as in colonization days acts in excess of 
the charter were declared to be null and void. 

1 This process is stated in very brief compass by Richard Frothingham in a note to page 
18 of his Rise of the Republic of the United States, which is here reproduced: 

Bancroft (i. 250) remarks, that " popular assembhes burst everywhere into life with a 
consciousness of their importance and an immediate capacity for efficient legislation." These 
assemblies, in some cases, at first were composed of the whole body of freemen. The dates 
of the formation of representative assemblies to make laws in the colonies are as follows : — 

Virginia, July 30, 1619. — The governor summoned two burgesses from three cities, three 
hundreds, three plantations, Argals' gift, and Kiccowtan. — Proceedings in New-York Hist. 
Soc, Coll. 2d ser. HI, communicated by Bancroft in 1856. The governor, council, and bur- 
gesses continued to meet together, Beverly says (Hist. Va. b. iv. 31), till 1680, when " Lord 
Colepepper, taking ad\ antage of some disputes among them, procured the council to sit apart 
from the assembly ; and so they became two distinct houses, in imitation of the two Houses 
of Parliament in England, — the Lords and Commons, — and so is the Constitution at this 
(1705) day." 

Massachusetts, May 19, 1634. — To the surprise of the magistrates, twenty-five delegates, 
chosen by the freemen of the towns, of their own motion, appeared and claimed a share in 
making the laws. The claim was allowed, and their names appear on the records of the 
day, with the magistrates, as part of the (General Court. They sat together for ten years. 
In 1644, the "Massachusetts Records" say (i. 58), on account "of divers inconveniences," 
of the magistrates and deputies sitting together, and " accounting it wisdom to follow the 
laudable practice of other States, who have laid groundworks for government," it was 
ordered — both sitting together — that each should sit apart; and they became co-ordinate 
and co-equal branches, the assent of both being necessary to make a law. Plymouth had a 
representative assembly in 1639. The charter of 1692 named twenty-eight persons as coun- 
sellors : afterwards they were chosen annually by a joint vote of a new House of Representa- 
tives and the old counsellors. 

Connecticut, Jan. 14, 1639. — An agreement among the towns to be as "one public State 
or commonwealth," provided for a representative assembly, consisting of deputies chosen by 
the freemen, who, with a governor and council, composed the legislative power. They sat 
together. The charter of 1662 provided, that the governor, deputy-governor, and twelve 
magistrates should be chosen at a general election, and deputies should be chosen by the 
towns. All these officers sat together. In 1698, it was ordered that the governor or deputy- 
governor and magistrates should be called the upper house, and the deputies the lower house, 
that thev should sit apart, and that no bill become a law without the consent of both.— 
Trumbuil's Connecticut, i. 102, 399. 

Marvland, February, 1639.— An assembly of the body of freemen made provision for a 
representative assembly (Chalmers' Annals, 213). The composition of this body was pecul- 



EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION 85 

iaf. Griffith (Maryland, 7) says, that, "upon writs being issued by the governor, delegates 
elected by the freemen were to sit as burgesses, one or two for each hundred, with the 
persons especially called by the governor, and such freemen as had not consented to the election 
of others, or any twelve or more of them, including always the governor and secretary." 
The burgesses (Chalmers, 219) desired, in 1642, to sit by themselves; and, in 1650 (Griffith, 
13), the assembly passed an act dividing themselves into two houses; the governor and 
secretary and council to be the upper house, and the burgesses the lower house; and all bills 
assented to by the major part of either to be the laws. 

Rhode Island, JNlay, 1647. — Provision was made under the patent or charter, granted in 
1644 by the Parliamentary Commission, for a representation from the towns, which discussed 
proposed laws before they were presented to a general assembly. — Arnold's Rhode Island, 
i. 203. By the charter of 1663, a governor, deputy-governor, and assistants were to be 
chosen annually at Newport; and deputies were to be chosen by each town. At first, all sat 
in one room. In 1666, there was an effort to have the deputies sit as a separate house; but 
the measure was not adopted till 1696. — Arnold, 327, 533. The governor and assistants, or 
magistrates, were the upper house ; the deputies, the lower house. 

North Carolina, 1667. — Settlers were invited into this colony by the promise of legislative 
freedom. — Williamson, i. 94. Hawks (i. 144) thinks there was an assembly in 1666; but 
the general assembly, under the charter, consisted of the governor, twelve councilors, and 
twelve delegates, chosen by the freeholders. — Chalmers, 524. At a later period, while under 
proprietary rule (Hawks, ii. 147), the general assembly was divided into two houses. 

New Jersey, 1668. — This proprietary colony was divided at first into East Jersey and 
West Jersey, which had separate assemblies : the first held in East Jersey was on May 26, 
1668, and in W^est Jersey, Nov. 25, 1681.— Gordon's New Jersey, 44-48. In 1702, the two 
parts were imited, a royal government formed, and a general assembly provided for, con- 
sisting of the governor, a council of twelve nominated by the king, and a house of repre- 
sentatives chosen by the freemen of the counties and cities. They sat together. In 1738, 
the council was made a separate branch ; the governor withdrew from it, and no longer was 
the presiding officer. — Mulford's New Jersey, 335. 

South Carolina, 1674. — Settlers were promised a share in making the laws. — Ramsay's 
South Carolina, i. 30. In 1674, the freemen elected representatives, when, Ramsay says, 
there were (ib. i. 35) "the governor, and upper and lower houses of assembly; and these 
three branches took the name of parliament." The colony became, in 1720, a royal govern- 
ment; it was settled that the governor and council be appointed by the king, and the rep- 
resentatives be chosen by the people. The whole house was chosen at Charleston, where 
"there had been often great tumults." — Carroll, ii. 149. .A.bout 1716, the colony was divided 
into parishes ; and it was provided that each parish should elect its representatives, " to be 
balloted for at the several parish churches, or some other convenient place mentioned in 
the writs, which were to be directed to the church-wardens, and they to make returns of 
the elected members ; and of this act the people were very fond, finding it gave them a 
greater freedom of election." — Jb. ii. 149. In 1720, when the colony became a royal govern- 
ment, it was provided tliat the governor and council should be appointed by the king, and 
the representatives chosen by the people. — Ramsay, i. 95. 

New Hampshire, March 16, 1680. — By the decision of the crown, New Hampshire was 
separated from Massachusetts, and a commission constituted a president and council " to 
govern the province ; " and this commission authorized the qualified voters of the four 
towns to choose an assembly. It consisted of eleven deputies, and sat as a distinct body; 
the council having a negative on its acts. The king engaged to "continue the privilege of 
an assembly in the same manner and form, unless he should see cause to alter the same." 
A Royal Commission, in 1692, provided for a governor and council, and a house of repre- 
sentatives, to be elected by the towns; both meeting separately, and acting as co-ordinate 
branches.— Belknap, i. 139, 145. 

Pennsylvania, 1682.— In this colony, provision was made for a representative assembly 
under the Frame of Government of 1682; and also under forms tried in 1683 and 1696. 
In 1701, the charter agreed upon provided for an annual assembly to consist of four dele- 
gates from each county, or a greater number, if the governor and assembly should agree 
to it. This assembly was to choose a speaker and other officers, "to be judges of the 
qualifications and elections of their own members, sit upon their own adjournments, appoint 
committees, prepare bills, impeach criminals, and redress grievances, with all other powers 
and privileges of assembly, according to the rights of the free-born subjects of England, 
and the customs in any of the Queen's plantations in .America." — Franklin's Works, iii. 155. 
In this colony (Douglass's Summary, ii. 317), the cotmcil had no concern in the legislation 
otherwise than advising the governor. The legislature had but one branch. 

Delaware, 1682. — This colony became a dependency on New York, but was purchased 
by William Penn. The three lower counties of the Delaware, New Castle, Kent, and Sus- 



86 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

sex, claimed, under the charter of 1681, a separate assembly, which they obtained, but had 
the same executive as Pennsylvania. 

New York, Oct. 17, 1683. — The governor called an assembly, composed of seventeen 
delegates, who adopted a charter of liberties, apportioned the representatives to the counties, 
and claimed to be a free assembh'. — Dunlap's New York, i. 134. In 1791, the first assembly 
convened after the Revolution, and consisted of seventeen delegates. The acts of this as- 
sembly are the first that were considered valid by the courts of law. — Smith's New York, 87. 
The assembly, down to the Revolution, did not exceed twenty-seven members. — Dunlap's 
New York, i. 212. The council consisted of twelve, nominated by the crown, as was the 
governor, and sat by themselves. 

Georgia, 1754. — ■ The first representative assembly was called by the governor under a 
form of government matured by the Board of Trade, and authorized by the king. It was 
composed of nineteen delegates from three districts, and (McCall's Georgia, i, 248) had 
power similar to other colonial assemblies. 



FURTHER COLONIAL PRECEDENTS 

To balance a large state or society, whether monarchical or republican, on general laws, 
is a work of so great difficulty, that no human genius, however comprehensive, is able, 
by the mere dint of reason and reflection, to effect it. The judgments of many must 
unite in this work: Experience must guide their labour: Time must bring it to perfec- 
tion: And the feeling of inconveniences must correct the mistakes, which they inevitably 
fall into, in their first trials and experiments. (Dazid Hume, Of the Rise and Progress 
of the Arts and Sciences, Essays and Treatises, 1742, edition of 1823, Vol. I, p. 117.') 

To any one who had inhabited a colony governed under a charter the effect of which 
on the validity of a colonial law was certainly liable to be considered by the Privy Council, 
there was nothing startling in empowering the judiciary to pronounce in given cases upon 
the constitutionality of Acts passed by assemblies whose powers were limited by the Con- 
stitution, just as the authority of the colonial legislatures was limited by charter or by 
Act of Parliament. {Albert Venn Dicey, Introduction to the Study of the Law of the 
Constitution, 1885, 8th edition, 1915, p. 160.) 

The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and 
Christianitie call for as due to every man in his place and proportion without impeach- 
ment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of 
Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not 
the ruine of both. 

We hould it therefore our dutie and safetie whilst we are about the further establishing 
of this Government to collect and expresse all such freedomes as for present we foresee 
may concerne us, and our posteritie after us, And to ratify them with our sollemne consent. 

Wee doe therefore this day religiously and unanimously decree and cnnfirme these 
following Rites, liberties and priveledges concerneing our Churches, and Civill State to 
be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction 
for ever. 

1. No mans life shall be taken away, no mans honour or good name shall be stayned, 
no mans person shall be arestcd, restrayned, banished, dismembred, nor any waves punished, 
no man shall be deprived of his wife or children, no mans goods or estaite shall be taken 
away from him, nor any way indammagcd under colour of law, or Countenance of Au- 
thoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting 
the same, established by a gcnerall Court and sufficiently published, or in case of the defect 
of a law in any partecnier case by the word of God. And in Capitall cases, or in cases 
concerning dismembring or banishment according to that word to be judged by the Gcnerall 
2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the 
same justice and law, that is generall for the plantation, which we constitute and execute 
one towards another without partialitie or delay. (The Liberties of the Massachusets 
Colonie in New England, 1641, Old South Leaflets, Vol. VII, No. 164, p. 261.) 

In appealing to the common law, as the standard of exposition, in all doubts as to the 
meaning of written mstruments; there is safety, certainty, and authority. The institutions 
of the colonies were based upon it; it was their system of jurisprudence, w-ith only local 
exceptions, to suit the condition of the colonists, who claimed it as their birth-right and 
inheritance, 9 Cr. Zii, in its largest sense, as including the w^hole system of English juris- 
prudence, I Gall._493; the inexhaustible fountain from which we draw our laws, 9 S. & R. 
330, 39, 58. So it continued after the colonies became states, in most of which the common 
law was adopted by acts of assembly, which gave it the force of a statute, from the time of 
such adoption, and as it was then : so that in the language of this Court — " At the adop- 
tion of the constitution, there were no states in this Union, the basis of whose jurisprudence 
was not essentially, that of the common law in its widest meaning; and probably no states 
were contemplated, in which it would not exist." 3 Pet. 446, 8. It is also the basis on 
which the federal system of jurisprudence was erected by the constitution, the judiciary 
and process acts, which refer to "cases in law and in equity," "suits at common law" 

87 



b» THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

"the common law, the principles and usages of law" as they had at the time been defined 
and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45; 10 Wh. 29, 
2i2, 56, 8; 1 Pet. 613; and were adopted as then understood by the old states. {Mr. 
Justice Baldwin, A General View of the Origin and Nature of the Constitution and 
Government of the United States, 1837, pp. 3-4.) 

It is in the colonial charter that we find the germ of American constitutional law. Each 
of these, whether of the proprietary, provincial, or republican type, was the fundamental law 
of the jurisdiction, according to which its government was to be organized and administered. 
Except that it was not self-imposed, and that it was subject to revocation without the consent 
of those for whom it was made, it answered very nearly to our modern conception of what 
a Constitution should be. It was a brief document, laying down a general scheme of political 
organization, granting large powers of legislation and administration, and imposing a few, 
and but a few, fundamental restrictions. (Simeon E. Baldzvin, Constitutional Law, Two 
Centuries' Growth of American Law, 1701-igoi, 1902, p. 11.) 

The supervising power of the crown resided nominally in the King in Council; really 
in a committee of the Council without the King. Certain members of the Privy Council 
were thus made a standing tribunal, by the name of the Lords of Trade and Plantations. 
By their authority any colonial statute could be set aside as unauthorized by the charter, 
and the judgments of the colonial courts re-examined and reversed. From 1718 down to 
the treaty of peace with the United States in 1783 they were provided with a special 
counsel of their own, besides being entitled to call on the Attorney-General and Solicitor- 
General for advice. 

In one respect this royal prerogative, which was not infrequently exercised, was favorable 
to the development of American liberty and law. It secured a certain unity of movement 
in their growth. It produced symmetry of form. It built up a sentiment of common 
nationality. It promoted the study of legal institutions. It helped to rear an American 
bar, worthy of the name. (Simeon E. Baldwin, Constitutional Law, Tzvo Centuries' Growth 
of American Law 1701-1901, 1902, p. 12.) 

In order to prepare the way still further for the proposition to be set forth in this 
article, it is necessary to say that the Federal Constitution is not only not a fiat-constitution 
projected from the brain of the Fathers, nor a copy of the contemporary constitution of 
England; it is also not founded upon any previous body of institutions which existed merely 
in the form of customs. As it is itself primarily a body of written law, so it is based upon 
successive strata of written constitutional law. (William C. Morey, The Genesis of a 
Written Constitution, Annals of American Academy of Political and Social Science, 1890-91, 
Vol. I, p. 533.) 

The law of corporations was the law of their being for the four original New Eng- 
land colonies. Of whatever else they might be ignorant, every man, woman, and child 
must know something of that. It governed all the relations of life. This was true, whether 
the government to which they were subject was set up under a charter from the crown or 
those who held a royal patent, or — as in New Haven — was a theocratic republic, owing 
its authority to the consent of the inhabitants. The one rested on the law of private 
corporations de jure: the other on that of public corporations de facto. (Simeon E. 
Baldwin, Constitutional Law, Two Centuries' Growth of American Law 1701-1901, 1902, p. 
261.) 

The proceedings of a legal character in which the colonies had always been most inter- 
ested were those which took place in England concerning their own charters. . . . 

All the earlier colonial charters were such as were appropriate for the regulation of a 
trading adventure, or land speculation. Those to whom they were granted occupied the 
relation of shareholders, and elected their boards of direction and government to sit 
in England. Long before 1701, these boards in most of the colonies had been replaced 
by local legislatures, meeting on American soil, and the^ authority of foreign proprietaries 
was soon to be withdrawn in all. ... 

It is not surprising that English and American lawyers should have been inclined to 
look at the powers of the colonial assemblies and courts in very different ways. The 
doings of the original companies, under which the British plantations here were made, 
were, of course, as they took place in England, fully subject to control by the English 
courts. ... 

The system of judicial appeals to the King in Council was worked out with more and 
more precision as the eighteenth century advanced. ... 

Some of the judgments rendered by the King in Council denied validity to colonial 



FURTHER COLONIAL PRECEDENTS 89 

statutes which were of the first importance. Such was that in the case of Winthrop v. 
Lechmere, rendered in 1727, by which the rules of inheritance which had been followed 
in Connecticut for nearly a hundred years were set aside as contrary to the laws of Eng- 
land respecting primogeniture. 

Certain political ideas were thus firmly embedded in the American mind. One was 
that every statute was subject to be set aside if its enactment transcended the powers 
conceded in the charter to the colonial legislature. Another was that there was a supreme 
law — the common law of England, modified in rare instances by Act of Parliament — which 
was one and the same for every colony, and that if any of their judicial tribunals failed to 
respect it, the judgments could be reversed by an imperial court of appeal. 

The jurisdiction of the King in Council, maintained hardly more for the protection of 
the royal prerogative than to repress the development of any distinctively colonial and 
un-English jurisprudence, thus served directly to prepare the way for the American theory 
of constitutional law. It supplied some of the necessary conditions by familiarizing our 
people with the elementary conceptions, the institutional prerequisites, out of which it must 
grow. (Simeon E. Baldwin, Constitutional Laiv, Two Centuries' Growth of American 
Law, 1701-1901, 1902, pp. 17-20.) 

As the colony was created by a royal charter that called into being a subordinate law- 
making body, that body could neither violate the terms nor transcend the powers of the 
instrument to which it owed its existence. In colonial times " questions sometimes arose 
. . . whether the statutes made by these assemblies were in excess of the powers con- 
ferred by the charter; and, if the statutes were found in excess, they were held invalid by 
the courts, that is to say, in the first instance by the colonial courts, or, if the matter was 
carried to England, by the Privy Council." (Bryce. The American Commomvealth, i, 243.) 
After the severance from the mother country, that power to annul a statute, originally 
vested in the Privy Council, was simply assumed by the supreme courts of the emancipated 
states. (Hannis Taylor, The Origin and Growth of the American Constitution, 1911, pp. 
I03-4-) 



CHAPTER V 



FURTHER COLONIAL PRECEDENTS 



" Once an 

Englishman 
Always an 
Englishman ' 



Relation 
of English 
Law to 
Colonies 



An examination of the various charters of the plantations which became, 
in the course of time, the thirteen United States of America, discloses that, 
with the single exception of Pennsylvania — which, in fact, however, was not 
an exception — they contained the express declaration that the colonists and 
their children inhabiting them were to be deemed natural born British subjects, 
and that, as such, they should enjoy all the privileges and immunities thereof. 
We should expect this to be so, even although it were not expressly stated, 
as the doctrine of indelible allegiance was then, and for many years thereafter, 
the cardinal principle of English law, shortly stated in the phrase with which 
we of the present day are familiar, " Once an Englishman, always an English- 
man ; " from which it would seem to follow that such an one, owing the 
duties of an Englishman, would likewise possess all his rights and privileges. 

It was, however, foreseen that the new and unknown conditions of the 
new and unknown world to which the colonists were transplanted and in 
which they took root, would require laws fitted to the new environment; but, 
being Englishmen, subordinated to the duties and possessing the rights 
thereof, it was provided, as an examination of the charter discloses, that such 
rules and regulations as they might frame should, negatively expressed since 
it was impossible to state positively their content, not be contrary or repugnant 
to or inconsistent with the laws of England. 

We should expect that the settlers would assume the rights of English- 
men without giving the subject much thought, that they would think less of 
their duties and be inclined to , test their legality and to question their ap- 
plicability, even if they should be found to be grounded in the common or 
statute law of the old country. Especially we should expect the colonists to 
appeal to the common and statutory law of England guaranteeing the privi- 
leges of Englishmen if the mother country should attempt to deprive them of 
the rights and privileges of Englishmen guaranteed to them by the common 
law and by statutes passed before the settlement of the colonies. These 
they could properly claim to carry with them, and they could not unreason- 
ably claim the benefits of statutes passed after the settlement of the colonies 
giving Englishmen at home greater rights than they possessed at the time 
of the exodus of the settlers. 

90 



FURTHER COLONIAL PRECEDENTS 91 

In expressing an opinion on this matter, it is important to bear in mind colquestv. 
the situation of the New World when the colonies were planted, for if the Dil^ove^ 
territories parcelled out to companies and forming the colonies of the new 
world should be considered as conquered or as ceded territories, the laws there 
obtaining at the time of such cession or conquest, unless changed by the new 
sovereign, would obtain and continue in force unless inconsistent with the 
political, religious and moral ideals of the new master. Whereas, if these ter- 
ritories were to be regarded as vacant lands, subject to discovery and occupa- 
tion by Englishmen, there would be no laws by which settlers could be gov- 
erned other than those which they carried with them as Englishmen. Under 
the first theory, the common law would not follow the settler but would have 
to be extended to the territories by express act ; under the second, the common 
law accompanied the settler and did not need to be extended to the territories. 
Sir William Blackstone, whose Commentaries appeared on the eve of the 
Revolution and whose opinions had great weight with the colonists, was 
inclined to the opinion that the territories of the New World were properly 
to be regarded as acquired by conquest or treaty, saying expressly that " Our 
American plantations are principally of this latter sort, being obtained in 
the last century either by right of conquest and driving out the natives (with 
what natural justice I shall not at present enquire), or by treaties. And 
therefore the common law of England, as such, has no allowance or authority 
there; they being no part of the mother country, but distinct (though depend- 
ent) dominions." ^ 

If the facts be as alleged by the illustrious commentator, his conclusions Fnterpretkfu)!! 
follow as a matter of course, but it does not appear that any of the territory 
claimed by Great Britain, and out of which the American plantations were 
formed, was conquered territory. New York, conquered from the Dutch, 
it may be said, was ceded by treaty, but the conquest and the treaty were 
regarded merely as removing the obstacles to and as confirming the English 
claim based upon discovery. It is believed, therefore, that Blackstone's state- 
ment lacks the premises without which it can not be supported, and the theory 
which obtained in colonial times, and the theory in accord with the facts, was 
clearly and unequivocally stated by Chief Justice Marshall in his masterly 
opinion in Johnson v. M'Intosh (8 Wheaton, 543), decided in 1823, in which 
that eminent jurist, after a survey of the discovery and settlement of the 
New World, held that the title of European nations was acquired by dis- 
covery, recognizing in the native Indians a right to possession but not to 
ownership of the land, which passed to the discoverer upon discovery and 
subject to appropriation by the discoverer. 

1 Sir William Blackstone, Commentaries on the Laws of England, 1765, Vol 1, 
p. 105. 



92 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Rights of 
Discovery the 
True Basis 



Blankard 
V. Galdy 



Looking upon the territory as acquired by discovery and not by conquest 
or cession, the second theory is to be accepted as true in fact, and an authority 
or two need only be cited in order to make clear that the common law of Eng- 
land and the statutes in force at that time followed the colonists. This ques- 
tion arose in the case of Blankard v. Galdy (2 Salkeld, 411 ; 4 Modern, 222), 
decided by Lord Chief Justice Holt in 1693. 

From the facts in this case it appeared that the defendant purchased the 
office of provost marshal general in Jamaica, relating to the administration of 
justice in that island, and that he gave bonds for the purchase price of the 
office. In an action of debt upon the bond, the defendant pleaded the statute 
of Edward VI against buying offices concerning the administration of justice, 
that the statute applied to the island, and that therefore the condition upon 
which the bond was given was illegal and void. In reply to this contention, 
the plaintiff stated that Jamaica was an island beyond the seas, conquered from 
the Indians and Spaniards in the time of Queen Elizabeth, and that the in- 
habitants thereof were governed by their own laws and not by the laws of 
England. To this the defendant rejoined that, before the conquest, they were 
indeed governed by their own la^YS, but since then by the laws of England. 
On behalf of the plaintiff Shower argued, in terms that support the claims of 
the colonists at a later date, that " on a judgment in Jamaica, no writ of 
error lies here, but only on appeal to the Council ; and as they are not repre- 
sented in our parliament, so they are not bound by our statutes, unless 
specially named." Pemberton, for the defendant, contended " that by the 
conquest of a nation, its liberties, rights, and properties are quite lost; that by 
consequence their laws are lost too, for the law is but the rule and guard 
of the other ; those that conquer, cannot by their victory lose their laws, and 
become subject to others." Chief Justice Holt, apparently delivering the 
unanimous opinion of his brethren, drew the distinction between the settle- 
ment of an uninhabited country and of a country acquired by conquest or ces- 
sion. On the first point he is made to say in the Salkeld report that " In case 
of an uninhabited country newly found out by English subjects, all laws in 
force in England are in force there ; " on the second point that, " Jamaica being 
conquered, and not pleaded to be parcel of the kingdom of England, but part of 
the possessions and revenue of the Crown of England, the laws oi 
England did not take place there, until declared so by the conqueror or his 
successors. . . . That it was impossible the laws of this nation, by mere 
conquest, without more, should take place in a conquered country ; because, for 
a time, there must want officers, without which our laws can have no force : 
That if our law did take place, yet they in Jamaica having power to make new 
laws, our general laws may be altered by theirs in particulars." In another 
account of the same case (4 Modern, 222), the court is reported to have said. 



FURTHER COLONIAL PRECEDENTS 93 

" And therefore it was held, that Jamaica was not governed by the laws of 
England after the conquest thereof, till new laws were made; for they had 
neither sheriff or counties; they were only an assembly of people which are 
not bound by our laws, unless particularly mentioned." Judgment was 
accordingly entered for the plaintiff, because, being a conquered country and 
not a parcel of the kingdom of England but a part of the possessions of the 
Crown, the laws of England did not apply unless expressly extended.-^ 

This case, which may justly be called the leading one, is of very great im- Law"f ° 
portance, as it is believed to state accurately the English law on the subject, Foiwd 
and in accord with the law of nations. Looked at solely from the first 
standpoint, it will be observed that it draws a distinction between the kingdom 
of England, on the one hand, in which the common and statute law prevailed 
as of course; and the possessions of the Crown, or, as Sir William Blackstone 
puts it, dependent dominions. For the kingdom of England, the Parliament 
legislated, and its act bound English subjects within the kingdom. The 
dominions necessarily required law, regulation and supervision, and they were 
bound by act of Parliament specifically mentioning and applying to them, inas- 
much as the act of Parliament was the act of the Crown, the lords spiritual 
and temporal and the House of Commons, that is to say, of the supreme legis- 
lative authority of Great Britain. In the absence of such a legislative act, 
the King himself in council could and did legislate for the territories subject 
to the Crown, but he did so by an act of prerogative, which could not be 
contrary to but must be in accordance with the law of the land, including 
therein acts of Parliament. He might, however, divest himself of the right 

^The law of this subject has been admirably summarized and stated by Sir Joseph Jekyll, 
Master of the Rolls, as follows: 

Anonymous, 2 Peere Williams, 75, decided in 1722. 

An uninhabited country newly found out, and inhabited by the English, to be governed 
by the laws of England. — A conquered country to be governed by such laws as the con- 
queror will impose: but until the conqueror gives them new laws, they are to be governed 
by their own laws, unless where thc^e laws are contrary to the laws of God, or totally silent. 

Memorandum, 9th of August 1722, it was said by the Master of the Rolls to have been 
determined by the Lords of the privy council, upon an appeal to the King in council from 
the foreign plantations, 

\st. That if there be a new and iminhabited country found out by English subjects, as 
the law is the birthright of every subject, so, wherever they go, they carry their laws with 
them, and therefore such new fo\uid country is to be governed by the laws of England; 
though, after such country is inhabited by the English, acts of parliament made in England, 
without naming the foreign plantations, will not bind them; for which reason, it has been 
determined that the statute of frauds and perjuries, which requires three witnesses, and 
that these should subscribe in the testator's presence, in the case of a devise of land, does 
not bind Barbadoes ; but that, 

2dly, Where the King of England conquers a country, it is a different consideration : for 
there the conqueror, by saving the lives of the people conquered, gains a right and property 
in such people ; in consequence of which he may impose upon them what laws he pleases. 
But, 

3dly, Until such laws given by the conquering prince, the laws and customs of the con- 
quered country shall hold place; unless where these are contrary to our religion, or enact 
any thing that is malum in se, or are silent ; for in all such cases the laws of the conquering 
country shall prevail. 

See the case of Blankard v. Galdv (2 Salk., 411). 



94 THE UNITED STATES: A STLDV IX INTERNATIONAL ORGANIZATION 

to exercise his prerogative, as held in the leading case of Campbell v. Hall 
(Cowper 204), decided by the Court of King's Bench in 1774, at the verv 
eve of the Revolution. 

B)'^ the treaty of 1763 between France and Great Britain the former ceded 
to the latter country the Island of Grenada, which had been conquered by 
British arms. By the King's proclamation of October 7, 1763, the governor 
of the colony was authorized and required to call a general assembly in the 
manner and form used in the other colonies and provinces of America, which 
assembly, together with the council and governor, was authorized, as stated by 
Lord Mansfield in delivering the vmanimous opinion of the court, " to make, 
constitute, and ordain laws, statutes, and ordinances, for the public peace, wel- 
fare, and good government of our said colonies and the inhabitants thereof, as 
near as may be agreeable to the laws of England, and under such regulations 
and restrictions, as are used in our other colonies." On April 9, 1764, by let- 
ters patent under the great seal, the King appointed General Melville governor 
" with a power to summon an assembly as soon as the state and circumstances 
of the island would admit, and to make laws with consent of the governor 
and council, with reference to the manner of the other assembhes of the king's 
provinces in America." The governor, thus commissioned, arrived in Gren- 
ada on December 14, 1764, and before the end of the succeeding year an as- 
sembly actually met in the island. 

But before the Governor, commissioned on the 9th of April, 1764, arrived 
in the island, letters patent under the great seal were issued on July 20, 1764, 
laying a duty or impost of four and a half per cent on certain commodities 
grown, produced, and exported from the island " in lieu of all customs and 
import duties, hitherto collected upon goods imported and exported into and 
out of the said island, under the authority of his most Christian Majesty." 
One Campbell, a British subject, paid this duty to one Hall, a collector of his 
Majesty's customs, and an action of money had and received was brought by 
Campbell against Hall on the ground " that the money was paid to the de- 
fendant without any consideration; the duty, for which, and in respect of 
which he received it, not having been imposed by lawful or sufficient authority 
to warrant the same." Judgment was entered for the plaintiff on the ground, 
among others, that, having in the proper exercise of his prerogative created 
an assembly in Grenada, with power to raise revenue and to make laws with 
the consent of the council and governor, the King had divested himself of 
the power to legislate, as he otherwise could have done for this dependent 
dominion, now forming a part of the kingdom of Great Britain, and that legis- 
lation to bind the colony should henceforth be by act of Parliament, not by the 
prerogative of the King in Council. 

It is interesting to note in this connection, although dwelt upon in another 



FURTHER COLONIAL PRECEDENTS 95 

place, that the court considered the question of an excess of power in so far 
as the rights of individuals was concerned as a judicial question, since the let- 
ters patent imposing the duty were in excess of the power properly lodged 
in the King, thus furnishing a precedent whereof the framers of the Consti- 
tution availed themselves for setting aside acts of authority inconsistent with 
the fundamental law. 

After summarizing the law as laid down in Calvin's Case and in Blankard 
V. Galdy, already cited (although Lord Mansfield did not refer in express 
terms to the latter case), his Lordship said: 

That if the king (and when I say the king, I always mean the king with- 
out the concurrence of parliament,) has a power to alter the old and to in- 
troduce new laws in a conquered country, this legislation being subordinate, 
that is, subordinate to his own authority in parliament, he cannot make any 
new change contrary to fundamental principles: he cannot exempt an in- 
habitant from that particular dominion ; as for instance, from the laws of 
trade, or from the power of parliament, or give him privileges exclusive of 
his other subjects; and so in many other instances which might be put. 

In support of his views, he invoked two authorities, who, at the time of 
giving their opinions, were respectively Attorney and Solicitor General : 

In the year 1722, the assembly of Jamaica being refractory, it was re- 
ferred to Sir Phillip Yorke and Sir Clement Wearge, to know " what could 
be done if the assembly should obstinately continue to withhold all the usual 
supplies." They reported thus : " If Jamaica was still to be considered as 
a conquered island, the king had a right to levy taxes upon the inhabitants ; 
but if it was to be considered in the same light as the other colonies, no tax 
could be imposed on the inhabitants but by an assembly of the island, or by an 
act of parliament." 

Continuing to draw for illustration upon the island of Jamaica, with whose 
history Lord Mansfield was familiar, — as he had examined it and had him- 
self, as Attorney General, given an opinion to the Crown on the matter in 
hand, — he proceeded to say that " King Charles 2d by proclamation invited 
settlers there, he made grants of lands : he appointed at first a governor and 
council only : afterwards he granted a commission to the governor to call an 
assembly." The conclusions to be drawn from these premises he thus stated: 

The constitution of every province, immediately under the king, has arisen 
in the same manner ; not from grants, but from commissions to call assem- 
blies : and, therefore, all the Spaniards having left the island or been driven 
out. Jamaica from the first settling was an English colony, who under the 
authority of the king planted a vacant island, belonging to him in right of his 
crown; . . . 

And from this state of affairs he draws the necessary conclusion that : 



96 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

A maxim of constitutional law as declared by all the judges in Calvin's 
Case and which two such men, in modern times, as Sir Philip Yorke and Sir 
Clement Wearge, took for granted, will require some authorities to shake. 

But, in addition to the authority of these two distinguished lawyers, Lord 
Mansfield stated positively that there was no authority for the contrary view, 
saying that, " on the other side, no book, no saying, no opinion has been 
cited ; no instance in any period of history produced, where a doubt had been 
raised concerning it ;" and " that before the letters patent of the 20th July, 
1764, the king had precluded himself from the exercise of a legislative 
authority over the island of Grenada. , . . That by the two proclamations 
and the commission to Governor Melville, the king had immediately and irre- 
coverably granted to all who were or should become inhabitants, or who had. 
or should acquire property in the island of Grenada, or more generally to all 
whom it might concern, that the subordinate legislation over the island should 
be exercised by an assembly with the consent of the governor and council, in 
like manner as the other islands belonging to the king." Although, before 
July 20, 1764, the king might have legislated, after that date His Lordship 
said : " To use the words of Sir Philip Yorke and Sir Clement Wearge, ' it 
can only now be done, by the assembly of the island, or by an act of the parlia- 
ment of Great Britain.' " 

It may, however, be advisable, in this connection, to invoke again the 
authority of the same distinguished Attorney General, with whom a greater 
even than Wearge concurred, as it regards not merely the subject in hand but 
introduces and decides a different and a related phase of the subject which it is 
necessary to understand. In connection with the petition of the plaintiff in 
Winthrop v. Lechmere, decided by the Privy Council in 1728, the following 
questions among others arose : " whether the said colony [of Connecticut] have 
thereby any power vested in them of making laws which affect property, or 
whether that power is not confined to the making of by-laws only, and whether 
if they have not the power of making laws affecting property, they have not 
forfeited their charter by passing such laws." To this series of questions Sir 
Philip Yorke and Sir Charles Talbot, respectively Attorney and Solicitor Gen- 
eral, replied, under date of August 1, 1730, "we have considered the said 
charter and memorial, and are of opinion, that by the said charter, the general 
assembly of the said province have a power of making laws which affect prop- 
erty; but it is a necessary qualification of all such laws, that they be reasonable 
in themselves and not contrary to the laws of England; and if any laws have 
been there made, repugnant to the laws of England, they are absolutely null 
and void." ^ 

In an earlier opinion, rendered to the Lords Commissioners of Trade and 

1 George Chalmers, Opinions of Eminent Lawyers on Various Points of English Juris- 
prudence, American ed., 1858, pp. 341-2. 



FURTHER COLONIAL PRECEDENTS 97 

Plantations, Richard West, then Counsel to the Board and later Lord Chan- 
cellor of Ireland, stated, it is believed, the conclusion to be drawn from the 
wording of the charters, the holdings of the courts, and the opinions of the At- 
torneys and Solicitors General, and within the compass of a single sentence, 
that " The common law of England is the common law of the plantations, and 
all statutes, in affirmance of the common law, passed in England, antecedent 
to the settlement of any colony, are in force in that colony, unless there is 
some private act to the contrary; though no statutes made since those settle- 
ments are there in force, unless the colonies are particularly mentioned." ^ 

It would be foreign to the present purpose to attempt to show in this sutml^i 
place the sense in which the colonists understood and exercised their right to 
make laws. Suffice it to say that new conditions produced new laws, and 
although each colony claimed the benefit of the common law when to its ad- 
vantage, it legislated and insisted upon its right to legislate in its own interest 
in the absence of provisions of the customary and statute law, and at times in 
the very teeth of either or both. But, as will presently appear, laws in ex- 
cess of the charter were either negatived by the governor in council, the active 
and vigilant miniature of the King in Council, or by the King himself in 
Council if the Governor had inadvertently approved a statute which his royal 
master was advised to disapprove, or by a judicial proceeding, by the Lords 
of Appeal in the Council, reversing a colonial judgment based upon a local law 
contrary to the laws of the realm, as in the case of IVinthrop v. Lcchmere. 
The result seems to be, however, that in every colony customs grew up, laws 
were passed, which created what might be called a local system, reasonable in 
the opinion of the colonies and not opposed to the law of the mother country 
as it should be interpreted in the circumstances. 

In a letter of ex-President Jefferson dated September 27, 1810, and ad- 
dressed to Albert Gallatin, then Secretary of the Treasury in James Madison's 
administration, the result was stated with respect to New England in terms 
which were applicable to the colonies as a whole, considering the individual 
conditions of each: 

Was there ever a profound common lawyer known in one of the Eastern 
States? There never was, nor never can be one from those States. The 
basis of their law is neither common nor civil; it is an original, if any com- 
pound can so be called. Its foundation seems to have been laid in the spirit 
and principles of Jewish law, incorporated with some words and phrases of 
common law and an abundance of notions of their own. This makes an 
amalgam sui generis, . . .^ 

And in a letter written two years later to John Tyler, Judge of the United 

^Ibid., p. 511. 

2 Writings of Thomas Jefferson, H. A. Washington ed., 1861, Vol. v, p. 550. 



98 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

States District Court of Virginia, and father of the future President, Mr. 
Jefferson said : 

I deride with you the ordinary doctrine, that we brought with us from 
England the common law rights. This narrow notion was a favorite in the 
first moment of rallying to our rights against Great Britain. But it was that 
of men who felt their rights before they had thought of their explanation. 
The truth is, that we brought with us the rights of men — of expatriated men. 
On our arrival here, the question would at once arise, by what law will we 
govern ourselves ? The resolution seems to have been, by that system with 
which we are familiar, to be altered by ourselves occasionally, and adapted 
to our new situation. . . . But the state of the English law, at the date of 
our emigration, constituted the system adopted here.^ 

Mr. Jefferson's remark seems to be in substantial accord with history. As 
a matter of fact the colonists were not familiar with the common or statutory 
law in force at the moment of their departure from the mother country. 
They were not lawyers ; the Bar was not held in honor until many years later ; 
there were very few books of authority in which they could find the com- 
mon or statute law during the course of the 17th century, and still fewer of 
those books and the reports containing the decisions of the English courts 
interpreting the common and statutory law made their way to the colonies. 
It was only on the eve of the Revolution, when the relations between the col- 
onies had become closer and the advocates of colonial rights and privileges 
found the common law as an arsenal, from which they could seize weapons to 
be used in their defense, that, in Jefferson's phrase, " they thought of their 
explanation." Thus, it is stated in the celebrated Declaration of Resolves of 
the First Continental Congress, dated October 14, 1774: 

That our ancestors, who first settled these colonies, were at the time of 
their emigration from the mother country, entitled to all the rights, liberties, 
and immunities of free and natural-born subjects, within the realm of Eng- 
land. 

That by such emigration they by no means forfeited, surrendered, or lost 
any of those rights, but that they were, and their descendants now are, en- 
titled to the exercise and enjoyment of all such of them, as their local and 
other circumstances enable them to exercise and enjoy. . . . 

That the respective colonies are entitled to the common law of England, 
and more especially to the great and inestimable privilege of being tried by 
their peers of the vicinage, according to the course of that law. 

That they are entituled to the benefit of such of the English statutes as ex- 
isted at the time of their colonization ; and which they have, by experience, 
respectively found to be applicable to their several local and other circum- 
stances.^ 

It is the most familiar of maxims that no man can be a judge in his own 
case, and to have allowed the colonies to determine for themselves whether 

1 Lyon Gardiner Tyler, The Letters and Times of the Tylers, Vol. i, p. 265. 

2 Journals of the Continental Congress, Vol. i, pp. 68-9. 



FURTHER COLONIAL PRECEDENTS 99 

their acts of legislation were within the charter or grant would have placed 
their future wholly within their own hands, and would have amounted to a re- 
nunciation on the part of Great Britain of its rights to the colonies. To have 
conceded to Great Britain the right to pass upon these questions would or* 
might have been fatal to the colonies, as the mother country' might fairly be 
counted upon, with the best of intentions, to interpret the laws in its own 
interest. There was thus a conflict of interests, and there was in the nature Conflict 

of Interests 

of things a difficulty arising from the conflict which neither, intent on its own 
interest, could appreciate in so far as it affected the other. Yet the solution 
of the difficulty by Great Britain was, if not free from fault, far from faulty, 
and familiarity with the difficulty and with the method of overcoming it en- 
abled the United States, when the colonies had cut adrift and set up for them- 
selves, to meet and to solve the difficulty which presented itself, and which 
must always present itself, in an empire with self-governing colonies, in a union 
of States conferring upon an agent the exercise of large sovereign powers, 
in the unconscious association of nations which we call the society of nations, 
the members whereof are indeed sovereign powers. 

For present purposes, the prerogatives of the Crown may be defined to be 0/^°^**''^^ 
the original rights which the kings of England had claimed and exercised, and ^"■■°*° 
which had not in the course of time been vested in the Parliament, or in 
courts of justice, provided, however, that the prerogatives remaining with the 
Crown were not, as stated by Lord Mansfield in a passage already quoted from 
the case of Campbell v. Hall, inconsistent with the fundamental laws of the 
realm. These prerogatives the king exercised in his Privy Council on the 
advice of certain persons appointed by him, as he had formerly exercised 
these rights in the older and larger council of the realm before he had divested 
himself or been divested of them. Deprived of its functions as a legislature 
and a court for the realm, the Privy Council was confined to administrative 
and executive functions in the kingdom, retaining in the dependent dominions 
legislative, executive and judicial rights, which, however, could not be con- 
trary to the fundamental constitution of the kingdom. 

In so far as the exercise of these prerogatives had not been granted to the 
colonies they remained with the King in Council ; when granted to the col- 
onies they could not lawfully be exercised by the King in Council, as held by 
Lord IMansfield in the leading case of Campbell v. Hall. But even in such 
cases the King in Council exercised the right of supervision and administra- 
tion; otherwise, the colonial interpretation might differ from the royal, and 
the system become one of inextricable confusion. The Council for the Gov- 
ernment of Foreign Plantations established by Charles II was abolished in commissioners 
1674. A permanent board was created, known as the Lords Commissioners of ^a Plantations 
Trade and Plantations, composed of great dignitaries, who were members of 



100 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Committee 
for Hearing 
Appeals 



Three 

Kinds of 

Appeals 

from 

Colonial 

Courts 



the Privy Council, and of some persons not members, but added to the Board to 
secure its efficiency. The chief purpose of the Lords Commissioners was to 
advance the trade of the Kingdom and also of the colonies, and in so doing, the 
interests of the empire would be advanced — although the chief interest was 
that of the mother country. The Lords Commissioners reported to the King 
in Council, and, upon approval of their recommendations, appropriate action 
was taken by them. They recommended, for example, instructions to be sent 
to the Governors, laws to be approved of or to be vetoed, and, in case of dis- 
putes between the colonies relating particularly to boundaries, they suggested 
the appointment of commissions composed of members from adjoining prov- 
inces, issued instructions to the commissioners, and recommended, favorably, 
or unfavorably, their awards or opinions to the King in Council. 

For matters of a judicial nature, there existed a Committee for Hearing 
Appeals from the Plantations, which appears to have been not a specially 
appointed committee of the council but to have been composed of such mem- 
bers of the council who attended and gave their attention to the appeals. This 
committee might, if it chose, consider and determine the matter itself, or re- 
fer it for investigation and report to the Lords Commissioners of Trade and 
Plantations, whose report it might or might not approve. Its action, how- 
ever, was submitted to the King in Council who, in the period of the Stuarts, 
attended with more or less regularity, but who, in the time of the Hanover- 
ians, appears to have been present only on formal occasions and to have given 
his assent to the recommendations of the Council without taking part in its 
proceedings. 

Appeals from judgments of the colonial courts might be of three kinds. 
First. The appeal was from a colonial judgment, in which the appellant 
claimed that a principle of law was wrongly applied because of an irregularity 
in procedure, because of prejudice on the part of the judge, or because of the 
misapplication of a principle of law. In these circumstances the appellant and 
defendant would be heard by counsel, either by the Committee for Hearing Ap- 
peals or upon reference from that body by the Lords Commissioners of Trade 
and Plantation, and proceedings in either would be had in accordance with 
English justice. If the case were referred to the Lords Commissioners, their 
recommendation would be reported to the Committee for Hearing Appeals, 
which could approve it or modify it. Whereupon the original or amended 
recommendation was referred to the King in Council, upon whose approval it 
became a decree of the King in Council and established the law of the case. 
In ordinary cases this would not involve the setting aside of a colonial statute. 
It is to be supposed, and it was the fact, that colonies did not relish appeals 
from the decisions of their courts and were indisposed to allow appeals from 
the Governor in Council, often the final colonial court of appeal. But, how- 



FURTHER COLONIAL PRECEDENTS 101 

ever reluctant the colonies might be to allow appeals to be taken to the King in 
Council, the mother country was inexorable, declaring it to be the right of 
every English subject residing within the colonies to appeal to the King in 
Council; and although the colonies sought to prevent appeals which they 
must needs permit, by allowing them only where large sums were involved and 
where security was given by the appellant for costs and for the payment of 
the judgment in case the judgment should be affirmed on appeal, the Privy 
Council decided upon petition of the appellant, irrespective of the amount 
involved, whether it would or would not allow the appeal in the interest of 
justice and its uniform administration. 

Second. It might happen, however, that the judgment appealed from was 
based upon the statute of the colony claimed to be contrary or repugnant to or 
inconsistent with the laws of the realm. In such a case the Privy Council would 
perforce examine the laws, and, if it found them to be as alleged, it declared 
them to be null, void and of no effect and reversed the decision of the court 
based upon them. In certain colonies, more especially in Connecticut and 

. t- ^ Precedent for 

Rhode Island (for the charter of Rhode Island was similar to that of Con- the Power of 

^ the Supreme 

necticut), the repugnancy of colonial legislation to the laws of the realm E^gi^iatuVes 
could only arise in a judicial proceeding of this kind, inasmuch as neither of 
these colonies was required to submit its laws to the mother country for ap- 
proval or disapproval. The leading case on this point is that of Winthrop 
V. Lechmere, which will be seen to be a direct precedent for the courts of the 
United States in declaring, in a judicial proceeding, laws of the United States 
or of the States, contrary to the Constitution, to be null, void and of no effect. 

Third. A dispute might exist between two colonies, as in the case of 
boundaries based upon an agreement reduced to writing and in a form to 
be passed upon by the courts, interpreted, and, in appropriate cases, specifically 
enforced by a court of equity. This was the case with the celebrated agree- 
ment of 1732 between the sons of William Penn, proprietors of Pennsylvania, 
on the one hand, and Lord Baltimore, proprietor of Maryland, on the other, 
regarding the boundary between the provinces. In such a case, the Court of 
Chancery having jurisdiction of the parties who resided in England could and 
actually did order them to enforce their agreement, although it affected title 
to two provinces beyond the jurisdiction of the Court and indeed beyond the 
seas. 

In disputes between the colonies there might be a wrong without a remedy 
unless there were a resort to a common authority, for, while each of the col- 
onies was equal and independent of the others, they were all dependent upon 
the Crown. Therefore, in a justiciable question, whether it be between the 
colonies or inhabitants of different colonies, resort was had to the King in 
Council, for the reasons quaintly stated in the petition dated July 17, 1678, of 



102 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



I 



Randall Holden and John Green in behalf of themselves and of his Maj- 
estys oppressed Subjects the Inhabitants of the Towne of Warwick, and of 
other adjacent Places belonging to his IMajestys Colony of Road Island and 
Providence Plantation in New-England, Setting forth the great Miserys and 
Calamitys they have undergone as well from the Government of the Massa- 
chusets, As by the unjust Proceedings of the Commissioners chosen out of 
the Three United Colonys of New Plymouth, Massachuset and Connecticut, 
not only in granting and awarding to one William Harris of Patuxet the 
Lands bought and improved by the Petitioners but giving him great Dam- 
ages, notwithstanding the Testimony of one Mr. Wilhams the first Indian 
Purchaser of those Lands and other iMateriall Witnesses on the Petitioners 
Behalf as by the Petition more at large appears. . . .^ 

The petitioners, however, were not content to have justice done in their 
individual cases. They put the ax to the tree, and recommended what the 
framers of the Constitution of the States did a century subsequently, not 
merely for New England but for the original thirteen States and all others 
composing the more perfect Union under the Constitution. After pray- 
ing that " a Stop may be put to the Proceedings of the said Commis- 
sioners," they specifically ask " that for determining this and the like Differ- 
ences that may and will arise between Colony and Colony, and for avoyding 
chargable Appeals from those remote parts His Majesty would be pleased 
to settle his Royall Authority over the whole country of New England, and 
erect a supreme and indifferent Judicature there." 

The case is a very interesting one in itself, and necessarily makes a strong 
appeal to a New Englander, inasmuch as it reminds him of the New England 
Confederation established in 1643, and then in effect. The Commissioners 
thereof appear to have passed adversely upon the case of the petitioners, so 
much to their annoyance that they carried their appeal to the Privy Council, not 
only in their own behalf, but in behalf of the other inhabitants of the town, 
against Massachusetts and the Commissioners of the New England. Confed- 
eration, thus involving the three colonies of Massachusetts, Plymouth and 
Connecticut, of which the Confederation was then formed. 
Suit of But the case has a larger interest and makes an appeal to Americans with- 

V. a State out distinction, for it seems to be a precedent for the extension of the judicial 

power of the United States to the suit of a citizen of a State against another 
State of the American Union, as intimated by Chief Justice White, in deliver- 
ing the opinion of the Supreme Court in Virginia v. West Virginia, (246 U. 
S., 565), decided in 1918. Therefore, the facts and the proceedings of this 
interesting controversy are stated somewhat at length and in detail, 
^d G?een ^^^ petition of Messrs. Holden and Green, " Deputyes for the Towne of 

Petition Warwick and Colony in Road Island," represented to His Majesty in council 

" that some Persons within the Corporation of the Massachusetts Bay had 
1 Acts of the Privy Covncil, Colonial Series, 1613-1680, Vol. i, p. 785, § 1224. 



FURTHER COLONIAL PRECEDENTS 103 

by a printed paper affixed in publique places in New England, layd Claime to 
a Tract of Land, called the Kings Province," which the petitioners claimed 
belonged to His Majesty, and was subject to the jurisdiction of Rhode Island. 
The said printed paper in question was read at the board, and a copy thereof 
was ordered to be sent to the agents for Massachusetts, who were directed to 
attend two days later, " to shew by what authority or Title Simon Brad- 
streete Deputy Governor, or other Inhabitants of that Colony have by a 
printed Paper called an Advertisement dated at Boston the 30th of July last, 
layd Clayme to the Land of Narragansett and Niantic Countreyes, called the 
Kings Province." ^ 

From the record of the Privy Council in the case, dated December 13, 
1678, it appears that the agents of Massachusetts complied with the direction, 
and declared " that the Government of the Massachusetts is not at all con- 
cerned in this clayme, but only some Inhabitants, who had purchased those 
Lands from the Indyan sachins." 

From the testimony of Messrs. Holden and Green, it appears that they had 
inhabited the region in question for above forty years ; that the sachems and 
Indians of Narragansett had voluntarily submitted, with their peoples, to 
the government of his late Majesty, Charles I, by a deed dated April 19, 1644, 
that the purchases made in 1659 by one Major Atherton and others of the 
Massachusetts Colony were null and void, and were declared to be so by His 
Majesty's Commissioners for settling the Royal authority' in New England, 
who visited Rhode Island in 1665, and who ordered the purchasers to vacate 
the lands, and declared " that the Magistrates of Rhode Island should exer- 
cise the authority of Justices of the Peace in the Narragansett Country, by 
them called the Kings Province . . . untill his Majestyes pleasure should be 
farther knowne." - 

Without losing ourselves in a wilderness of detail concerning these bound- 
ary disputes, it is sufficient to say that Connecticut claimed by its charter of 
1662, that the territory in question, and indeed all of the present State of 
Rhode Island, as far east as the Narragansett River, " comonly called Norro- 
gancett Bay, where the said River falleth into the Sea " ; that Rhode Island, 
by virtue of its charter of 1663 claimed the land in question " to the middle or 
channel of a river there, commonly called and known by the name of Pawca- 
tuck," thus making of that river the eastern boundary of Connecticut, and by 
an agreement of the agents of Connecticut and Rhode Island, who secured their 
respective charters, to harmonize the overlapping grants of their charters by 
providing in the Rhode Island charter " that the sayd Pawcatuck river shall 
bee alsoe called alias Norrogansett or Narrogansett river, and that that river 
in our late graunt to Connecticut Collony mentioned as the easterly bounds of 

^Ibid., pp. 790-1, §§ 1233, 1234. 
^Ibid., p. 791, §1234. 



104 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

that Collony;" that Atherton and his associates sought to obtain by purchase 
and by mortgage, the lands in question, to be held by them either in Connecti- 
cut or Massachusetts, both of which claimed the region, but not under Rhode 
Island; that the decree of the Commissioners set aside the claims of Atherton 
and his associates, and gave Rhode Island the advantage of possession, leav- 
ing the question of title to be adjusted with Connecticut, as it eventually was, 
by the decree of the Privy Council in 1727, and with Massachusetts by a de- 
cree of that body in 1746 and by a decision of the Supreme Court of the 
United States exactly a century later. 

But to return to the complaints of Messrs. Holden and Green. On the 
last day of January, 1679, the Committee of the Privy Council for hearing 
appeals presented their report, from which it appeared that the trouble was 
" chiefly occasioned by the pretensions and proceedings of William Harris of 
Patuxet in New England, who by his Petition presented vnto Your Majestic 
in Councill on the 11th of June, 1675, did set forth, that he and twelue others 
neer Forty yeares since purchased of the Indian Princes a certain parcell of 
Land called Patuxet, which they enjoyed Peaceable for many Yeares, notwith- 
standing the Seuerall Claymes of the Towne of Providence and of the Mas- 
sachuset Colony, vntill John Harrud and a Party with him forceably entred 
vpon part of those Lands vnder pretence of a purchase from other Indians." ^ 

Holden in his petition further alleged that Harris and party retained 
possession of a part of the lands in question against the verdict and judgment 
of court, so that by reason of the contiguity of Patuxet to the several towns 
and provinces, Harris and his partners apprehended " no Small Danger of 
loosing their Rights by the encroachment of the Towne of Providence, War- 
wick, new Plymouth and the Massachusets Colony." 

In this state of affairs, in August, 1675, the governors of Massachusetts. 
New Plymouth, Connecticut and Rhode Island were directed to appoint 
" some able honest and indifferent Persons to join with each other, and to 
cause the Differences and troubles arising to the Petitioner and his Partners, 
concerning the Lands of Patuxet to be brought to a fair Triall, and that by a 
just indifferent, and vpright Jury in like manner appointed, all might be fi- 
nally determined according to Justice and without delay." ^ 

It appears that the commission was duly issued and executed, although no 
report of the proceedings was transmitted to the Privy Council, inasmuch 
as the Committee for Hearing Appeals stated that the first knowledge they 
had of it was obtained through the petition of Messrs. Holden and Green, 
from which the Committee likewise obtained its knowledge of the facts and 
the proceedings under the commission. These two gentlemen, to whom the 

1 .-1rfs of the Privy Council, Colonial Series, 1613-1680, p. 800, § 1244. 

2 Ibid., p. 801. 



FURTHER COLONIAL PRECEDENTS 105 

territorial integrity of Rhode Island is very largely due, set forth in their peti- 
tion that in pursuance of royal letters they attended the time and place ap- 
pointed by the commissioners, the major part of whom " being elected out of 
their professed, and mortall Ennemies, and ouervoted those of Rhode Island, 
granting and awarding to the said Harris the Lands bought and improved by 
them, and also giuing great Damages, notwithstanding the Testimony of one 
Mr. [Roger] Williams the first Indian purchaser of those Lands, and other 
materials Witnesses in that behalf, wherby aboue five thousand acres of land 
and Meadows belonging to the Town of Warwick and parts of adjacent were 
taken away from them." ^ 

It appears, further, that the Commissioners had refused to suspend their 
sentence at the request of Messrs. Holden and Green, whereupon, taking ad- 
vantage of their charter, they appealed to His Majesty, and undertook their 
mission to England, " to supplicate your Majesties Royall interposition and 
settlement of their Country, which by reason of the said different lawes and 
formes of Government in the seuerall Colonies, would not otherwise be ac- 
complished." ^ 

The voyage to England apparently was noised abroad, because the Commit- 
tee states that, on the 15th of October, 1678, several months after the filing 
of the Holden and Green petition, a letter was received " from Mr. Leveret 
Gouernor of your Majesties Colony of the Massachusets . . . enclosing a Re- 
turn made vnto him by the Comissioners of the Court constituted by Virtue 
of your Majesties said Letters upon the Case of William Harris, which hav- 
ing been communicated vnto vs. Wee found it to contein the proceedings of 
the said Court." From Governor Leverett's report it appears that " two Com- 
missioners from each of the respective Gouernments of your Majesties four 
Colonies of New England." appeared at Providence Plantation in the Colony 
of Rhode Island on the 3d of October, 1677. who, to quote the record, " hav- 
ing Duely Chosen twelve Jury men, adjourned to the 17th of November fol- 
lowing, that so there might be timely Summons given to such as the plantifs 
or Demandents Desired to Commence their Action against;" that the jury 
rendered several verdicts in favor of William Harris and two of his partners 
who had joined with him; that a verdict was given for Harris and Field 
against the town of Warwick and the purchasers " of the said Land called 
Warwick ;" that the verdict was accepted by the court with allowance of 
costs; that the court ordered the town of Providence " to choose able men, to 
run such a Dividing lyne as might distinguish and mark out the Lands claimed 
by William Harris and Partners " ; that on June 18, 1678, the draft of the line 
was presented to but not accepted by the court, inasmuch as it did not seem to 

1 Ibid., p. 801. 

2 Ibid. 



106 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

that body to be " according to the true meaning of the Verdict " ; that, after 
much debate, the court, deeming it " most satisfactory that the former Jury 
themselves should explain their owne meaning in their Verdict," summoned 
them to appear at their next adjournment on the 1st of October following.^ 
At this stage an unexpected difficulty presented itself, inasmuch as, to 
quote the language of the record, " one of the Commissioners of the Colony 
of Connecticut absenting himself the next Day after, gaue occasion to the 
Commissioners of Rhode Island to with Draw themselves from the Court." 
This did not, however, daunt the rest of the commissioners, who, " notwith- 
standing continued their meeting, and the Gentlemen of the Jury likewise 
made their appearance, except the three appointed by Rhode Islande, who 
being Come the next Day refused to act as to the Explanation of their former 
Verdict, alleaging that they had with the rest of the Jury, given in their Verdict 
vpon Oath, which was accepted by the Court and the)'- Dismist, And therefore 
would not concerne themselues farther about it." The other jurymen, how- 
ever, not suffering from the scruples of their brethren from Rhode Island, 
whose land was in question, " gaue in, vnder their hands an explanation of 
what they intended in their former Verdict, which the Commissioners con- 
ceiued to be that lyne, which, according to Verdict of Jury and Justice ought 
to be run, and possession accordingly given vnto the Plantifs, at least vntil his 
Majesties pleasure should be further knowne." The procedure, however, 
worried the members of the court, for the record continues: 

Yet, forasmuch as one of the Commissioners was absent, and two being 
present, Did oppose the said explanation, and one, or more hesitated about 
the granting Execution ; The said Commissioners thought fit to leaue the 
finall Determination of this whole affair vnto your Majestie."^ 

Upon the receipt of the report from Governor Leverett, the Committee 
ordered a copy thereof to be delivered to Messrs. Holden and Green, who 
made the following pertinent obsen^ations upon it: 1st, that the complaint of 
William Harris concerned the lands of Patuxet, not the lands of Warwick, 
which were not part thereof, and that the court therefore had no power to 
determine the ownership of any other lands than those of Patuxet; 2d, that 
the town of Warwick publicly protested in open court against the proceedings 
of the Commissioners and claimed an appeal to His Majesty in council, which 
the majority of the commission refused to grant, " Saying it would be of ill 
Consequence to the Country to allow of any appeal to your Majestic;" 3d, that 
from the oath of Roger William's, who purchased the lands from the Indians 
which Harris and his partners then possessed, it appeared " that the Lands 
claimed by Harris of the Town of Warwick were nither bought by him of 

^ Acts of Privy Council, Colonial Series, 1613-1680, p. 801. 

^Ibid., p. 803. 



FURTHER COLONIAL PRECEDENTS 107 

the Indian Sachims or by him sold vnto Harris or Partners, nor is there men- 
tion of those Lands in any Deed of Sale ;" 4th, that the line run by the town of 
Providence, " whereof Harris, and Field are Inhabitants was accepted by the 
Commissioners and is according to Right ;" and 5th, that the line run was not 
satisfactory to the Commissioners themselves who had run it, in that they had 
been obliged to submit the whole matter to his Majesty in council.^ 

Therefore, Messrs. Holden and Green prayed that the original line be 
confirmed, or that matters remain " in the first state " until Harris and his 
partners should show cause to the contrary to His Majesty. " In Consider- 
ation of the Complainants humble appeale vnto your Majestic for Justice 
(which your Majestic in like Cases will alwaies allow of and encourage) to- 
gether with the reasons, and Euidences Offered by them in Justification of their 
Right, and present possessions which do not appear to be any part of the 
Lands of Patuxet, which only by your Majesties Commission were to be 
brought to a tryall," the Committee for Hearing Appeals recommended that 
" Your Majestic do therfore Signifie Your Royall Pleasure vnto William 
Harris, and all others whom it may concerne that the Inhabitants of the 
Towne of Warwick be not Disturbed in the quiet and peaceable enjoyment of 
the Lands claymed and possessed by them the Inhabitants of the Town of 
Warwick, And that all things relating therevnto remain in the same state they 
were in before the meeting of the said Commissioners vntill the said William 
Harris or Partners shall, in the Lawfull Defence of their Right before your 
Majestic in Councill make out a Sufficient title to the said Lands." ^ 

The report of the Committee was, as usual in such cases, approved and 
orders given accordingly for the inhabitants of Warwick. As regards the 
claims of Harris to lands situated within Patuxet, concerning which he went 
to England to petition the Privy Council, " which only by his Majesties Com- 
mission were to be brought to a tryall," the commissioners made a favorable 
report, and it was therefore ordered that Harris and his partners be peace- 
ably and quietly possessed thereof. 

The order of the King affirming the report of the Committee was dated 
January 2, 1679, but the matter did not rest here, as it appears from the record 
of the Privy Council under date of July 2 of the same year : 

Whereas the said Holden and Green were no sooner departed, but the 
Petitioner William Harris hath made his Appearance, beseeching your Ma- 
jesty to take such Course as might finally determine the Matters complayned 
of by him.^ 

The Committee was very naturally of the opinion " That by reason of the 
distance of Places and Absence of the Parties it wilbe a matter of too great 

1 Ibid., pp. 803, 804. 

2 Ibid., pp. 804-5. 
3/fcJd.,p.849, §1291. 



108 



THE UNITED STx\TES : A STUDY IN INTERNATIONAL ORGANIZATION 



Further 
Judicial 
Precedents 



difficulty for your Majesty to give such Judgment therein as may equally de- 
cide their respective pretensions," and suiting the action to the words, they 
recommended, for the reasons stated by them, the following procedure which 
in their opinion should be adopted as it was calculated to do justice towards 
the parties : 

And whereas the said Holden and Green did offer their Exceptions against 
the Colonies of the Massachusets and Conecticut upon divers past differences 
between them, And that on the other side the Petitioner William Harris thinks 
he has just cause to except against the Colony of Rhode Island as being par- 
ticularly interessed in the present Controversy. Wee therefore humbly offer. 
That your INIajestys Royall Commands be again sent to the Governor and 
Magistrates of your Colony of New Plymouth, Authorizing and requiring 
them to call before them the said Randall Holden and John Green, and other 
Persons in whose behalf they have lately appealed unto your Majesty And 
having in due manner examined the Pretensions of the said Harris unto the 
Lands possessed by them, do returne unto your Majesty a particular State 
thereof and their opinions thereupon with all convenient speed. 

And whereas your Majesty hath already thought fit to Order, That the 
said William Harris and Partners be peacably and quietly possessed of the 
Lands of Patuxet adjudged unto them by the first and Three last Verdicts 
given in pursuance of your INIajestys late Commission, Wee further offer That 
the Governor and Magistrates of the Colony of Rhode Island, to whose 
Jurisdiction the said lands apperteyne be strictly charged and required to put 
the said William Harris and Partners into the quiet possession thereof, and 
to take care. that Execution be given for their Dammage and Costs allowed 
by the said Verdicts and Judgments of Court, within the space of Three 
Moneths at furthest after the Receipt of your Majesty's Comands, And that 
in default thereof, sufficient Powers may be sent unto the Neighbouring Col- 
ony of New Plymouth to cause the same to be duly executed without delay .^ 

Harris returned to Rhode Island in September, 1679, and was victorious in 
the rehearing against Warwick. 

As far as we are concerned, the dispute may well end here, inasmuch as 
the present purpose is not -so much to show the decision, but the method of 
reaching it, where representatives of different colonies claimed land within 
another, where representatives of one and the same colony claimed lands to 
which adjoining colonies laid claim, and where, finally, the claim of land 
within one colony is based upon title alleged to rest in another and different 
colony. For all of which disputes this case, in its different phases may be 
cited as a precedent for the jurisdiction in these matters conferred upon the 
Supreme Court of the United States by the framers of the Constitution of 
the more perfect Union. However, it may perhaps be permissible to conclude 
the analysis of this interesting law-suit with the statement that after obtaining 
judgment against Warwick, the litigious Harris set sail for England in a ves- 
sel very inappropriately called The Unity, in order to appear before the 

^Acts of the Privy Council, Colonial Series, 1613-1680, pp. 849-50. 



FURTHER COLONIAL PRECEDENTS 109 

Privy Council not only in propria persona but as the agent of Connecticut 
and of Major Atherton and his associates in their various pretensions to the 
Narragansett region. On the voyage thither he was taken, in January, 1680, 
by an Algerian pirate and held in slavery for ransom. When he was eventu- 
ally released upon its payment, he died in London within a few days after his 
arrival, leaving it to the Privy Council to decide in 1727 and 1746 the claims 
which he had espoused, adverse to his contentions and in favor of the 
stout little colony of Rhode Island, of which he was an unworthy resi- 
dent. 

Passing by the many cases of appeal from local courts to the Privy Council 
involving a denial or miscarriage of justice, which could and probably would 
be taken in ordinary course from a lower to a court of last resort, inasmuch 
as they neither furnished a precedent nor throw light upon the judicial power 
of the United States, the three categories of appeals will be considered, and 
in some little detail, as they are apparently the source of that jurisdiction 
conferred in first instance upon the Congress by the ninth of the Articles of 
Confederation and upon the Supreme Court of the United States by twelve of 
the original thirteen States in creating the more perfect Union. 

First as to boundary disputes between the colonies in the absence of an p-'s^pu'l"^ 
en forcible agreement between them. Instead of discoursing in general and in New York 
the abstract upon the nature and jurisdiction of the Privy Council and the jersey^"* 
Lords Commissioners of Trade and Plantations, it is advisable to take a 
specific and concrete case, to follow it from the beginning to the end, and 
thus, as it were, let it tell its own story. For this purpose the long drawn out 
controversy between New York and New Jersey is chosen, not only because 
it is complete in itself, but because it states perhaps better than any other the 
ordinary course of procedure in such disputes. 

On December 23, 1717, an Act of the Assembly of the Colony of New From 

fT 1 „ , • , r 1 Negotiation 

York called attention to the fact that: to judicial 

Procedure 

" The Partition Lines between this Colony and the Colony of . . . Ne7v- 
Jersey, are necessary to be known and ascertained, in order that such of the 
Inhabitants of this Colony, whose Estates or Habitations are adjacent to, 
and border on the said Partition Lines, may peaceably, and without Molesta- 
tion, enjoy the Fruits of their Industry ; and that the Government may not be 
defrauded of the publick Taxes that may arise and become due from the said 
Inhabitants, by their pretending that they do not dwell within this Col- 
ony. . . ." ^ 

For this purpose money was appropriated to " be applyed to defray that 

part of the Charge of Running, Surveying and ascertaining the Partition Line 

Limitt and Boundary between this Colony and the Colony of Nczu Jersey 

which may be requisite for this Colony to pay ... in such parts & propor- 

^Laws of New-York from the Year i6gi, to 1751, inclusive (1762), p. 125. 



110 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

tions as shall be requisite for that Service, when the Survey ascertaining and 
Runing of the said Line Limitt and Boundary shall be began and Carryed on 
by the mutual Consent and agreement of his Excellency & Councill of this 
Province and the Proprietors of the soil of the said Province of New Jersey 
. . . which Lines being Run ascertained and agreed on by the Surveyors and 
Commissioners of each Colony, as afo're said, shall forever thereafter be 
Deemed taken be and remain as the partition Line Limitt and Boundary of 
this Colony, and all bodys Corporate and Politick, and all other persons what- 
soever within this Province, shall be forever Concluded thereby." 

On March 27, 1719, the Province of New Jersey passed an Act " for run- 
ning and ascertaining the Division Line betwixt this Province and the Province 
of New- York," and after stating the existence of disputes and controversies 
between the two colonies, as in the case of the New York Act, provided for 
the appointment of two or more cornmissioners with the Surveyor General 
o*f the Province of New Jersey, by the Governor of New Jersey, by and with 
the consent of the Council, " empowered by a Commission under the Great 
Seal of this Province, to join with such Commissioners and Surveyors as 
shall be appointed on the Part and Behalf of the Province of New-York" 
to " Run, Survey, Agree on and Ascertain the said Line, Limits and Bound- 
aries betwixt this Province of New-Jersey, and the said Province of New- 
York, according to the true Limits thereof, as near as conveniently can be 
done." And it was further provided that the line drawn by the commis- 
sioners of the two provinces in accordance with their commissions was to be 
considered the boundary line between the two provinces " any Law, Usage, 
Custom or Pretence to the contrary in any wise notwithstanding." ^ 

In 1719, pursuant to the Acts of New York and Nfew Jersey, Governor 
Hunter of the former colony issued commissions to two commissioners and the 
Surveyor of the province to meet with the two commissioners and the Sur- 
veyor General of the province of New Jersey, " in Order to find out and De- 
termine which of the Streams is the Northermost Branch of the River Dela- 
ware, And that then when such Branch is so Discovered that the said Sur- 
veyor or Surveyors Carefully According to the best of their Knowledg and 
understanding Discover and find out that Place of the said Northermost 
Branch of Delaware River that Lyes in the Latitude of fforty one Degrees and 
fforty Minutes which is the North Partition Point of New York and New Jer- 
sey," and to " Discover that part on the West side of Hudson's River that 
Lyes in the fforty One Degree of Latitude," and having fixed these two points, 
to run a straight line between them, " which line being so Run and Marked 
out is forever hereafter [according to the Acts of the two Colonies] to be 

1 The Acts of the General Assembly of the Province of New Jersey (1752), Vol. i, pp. 77-8. 



FURTHER COLONIAL PRECEDENTS 111 

Deemed taken be and Remaine as the Partition Line Limitt and Boundary 
between our said Provinces of New York and New Jersey." ^ 

By an indenture of July 25, 1719,2 ^^^ commissions appointed by the two 
colonies certified that the point of the Delaware had been located, but owing 
to disputes which arose between the colonies, the commission did not com- 
plete its work, and the question remained unsettled until it was taken up anew 
by an Act of New Jersey of February 18, 1748, by virtue w^hereof the bound- 
ary line between the two provinces was to be drawn in pursuance of the Acts 
of the two colonies, of 1717 and 1719, if New York consented thereto, and 
if not, by commissioners on the part of New Jersey.^ Because of protests 
on the part of New York, this Act containing a suspending clause which re- 
quired the approval of the Crown was disallowed by the King in Council upon 
the recommendation of the Lords of Trade and Plantation dated July 18, 
1753.* This recommendation, setting forth the proceedings actually had in 
this case and those which should have been had, is as follows. 

In the first place the Board of Trade states that two considerations arise 
upon the New Jersey act : First, " such as relate to the principles upon which 
it is founded " ; second, " such as relate to the Transactions and Cir- 
cumstances which accompany it." Under the first heading the Board calls 
attention to the fact that the act of New Jersey is the attempt of that province 
to secure the determination of a matter of specific interest to New York and 
of general interest to the Crown. Thus : 

AS to the first, it is an Act of the Province of New Jersey, interested in 
the Determination of the limits, and in the consequential Advantages to Arise 
from it. 

THE Province of New Jersey in its distinct and separate Capacity can 
neither make nor Establish for deciding differences between itself and other 
parties concerned in Interest. 

THE Established Limits of its Jurisdiction and Territory are such as the 
Grants under which it claims have assigned. If those Grants are doubtful 
and differences Arise upon the Construction or upon the matter of them, We 
humbly Apprehend that there are but two methods of deciding them, either 
by the concurrence of all parties Concerned in Interest or by the regular and 
legal Forms of Judicial proceedings. And it appears to us, that the legal 
method of proceeding must be derived from the Immediate Authority of the 
Crown itself, signified by a Commission from your Majesty under the Great 
Seal the Commission of subordinate officers and of derivative powers being 
neither Competent nor adequate to such purposes. To judge otherwise would 
be, as We humble conceive, to set up ex parte Determination and Incompetent 
Jurisdictions in the place of Justice and legal authority. 

^Report of the Regents of the A^fw York University on the Boundaries of the State of 
New York, prepared by D. J. Pratt, 1884, Vol. ii, pp. 608, 609. 

- Documents Relating to the Colonial History of Kciv Jersey, ed. Wra. A. Whitehead, 1882, 
Vol. iv, p. 394. Also, Pratt, Boundaries. Vol. ii, pp. 611-614. 

^ New Jersey Laws (Allinson's Compilation), p. 172. 

* Documents Relating to the Colonial History of Xezi' Jerscv. ed. Wm. A. Whitehead, 
1882, Vol. iii, part 1, pp. 144-150. Also, Pratt, Boundaries, pp. 656-9. 



112 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

IF THE ACT OF NEW JERSEY cannot conclude other parties, it can- 
not be Effectual to the Ends proposed : and that it would not be Effectual to 
Form an absolute Decision in this Case, the Legislature of that province 
seems Sensible, while it endeavours to leave to your Majestys Determination 
the Decision of one point relative to this matter and of considerable Impor- 
tance to it, which proves your Majesty cannot derive from them, without 
their having the Power to Establish the thing itself without the Assistance 
of your Majesty. 

And for the reasons stated, the Board concludes that " the present Act 
without the Concurrence of other parties concerned in Interest, is unwarrant- 
able and ineffectual." ^ 

Under the second heading, the Board of Trade calls attention to the fact 
that the Crown, on the one hand, and the provinces of New York and New 
Jersey, on the other, are interested parties, and, as is to be expected, the in- 
terest of the Crown is first stated. In the first place the Board mentions that 
the Crown was not a party to the negotiations and agreements between the 
two provinces for the settlement of their dispute, and, because of this lack of 
confirmation, holds that the proceedings are void. In the next place, the 
interests of the Crown are specifically set forth. Thus : 

With regard to the Transactions on the part of New York, We beg leave 
to observe, that whatever agreements have been made formerly between the 
two provinces for settling their Boundaries whatever Acts of Assembly have 
passed, and whatever Commissions have been issued by the respective Gov- 
ernors and Governments the proceedings under them have never been per- 
fected, the work remains unfinished, and the Disputes between the two prov- 
inces Subsist with as much Contradiction as ever. But there is a Circum- 
stance which appears to us to have still more weight, namely that those 
Transactions were never properly warranted on the part of the CROWN: 
The CROWN never participated in them, and therefore cannot be bound 
with respect to its Interests by proceedings so authorized.^ 

In disputes of this kind, the interests of the Crown are said to be three- 
fold: First, of "Sovereignty respecting mere Government;" second, "of 
Seigneurie which respects Escheats and Quit Rents ; " third, " of property as 
relative to the soil itself, which last Interest takes place in such Cases where 
either Your Alajesty has never made any Grants of the Soil or where such 
Grants have by Actual Escheats reverted to Your Majesty." On this phase 
of the subject the Board says: 

WITH regard to the first of these Interests viz, that of Sovereignty, it has 
been alleged to Us in Support of the Act, that it is not materially Affected by 
the Question, as both provinces are under Your IMajestys immediate direction 
and Government : But they stand in a very different light with respect to Your 
Majestys Interests in the Quit Rents and Escheats, in both which articles the 
Situation of the two provinces appears to us to make a very material altera- 
tion. For altho' the province of New Jersey is not under regulations of pro- 

1 Documents Relating to the Colonial History of New Jersey, Vol. viii, part 1, pp. 145-6, 
'^ Ibid., p. 146. 



FURTHER COLONIAL PRECEDEXTS 113 

priety or Charter with respect to its Government, yet it is a proprietary- prov- 
ince with respect to the Grant & Tenure of its Territon,-, and consequently 
as Xew York is not in that predicament, the Determination of the. Boundary in 
prejudice to that province will affect your Majestys Interest with respect to 
the Tenure of such Lands as are concerned in this question, it being evident 
that whatever Districts are supposed to be Immediately held of Your Majesty 
in Xew York, by being Supposed to be Included in the Limits of Xew Jersey, 
will Immediately pass to the proprietors of that province and be held of them ; 
by which means Your Majest)' would be deprived of your Escheats and the 
Quit Rents would pass into other Hands. 

TO obviate this objection it has been alledged that the Crown has already 
made absolute Grants of the whole Territory, that can possibly come in 
Question under the Determination of this Boundary, and reser^'ed only 
trifling and Inconsiderable Quit Rents on these Grants. But this Argument 
does not seem to us to be conclusive, since it Admits an Interest in your 
Majesty, the Greatness or Smallness of which is merely accidental, and there- 
fore does not affect the Essence of the Question, And we beg leave farther 
to obser\'e, that in the Case of Exorbitant Grants with Inconsiderable Quit 
Rents and where consequently it may reasonably be Supposed that the Crown 
has been deceived in Such Grants by its Officers, Your Majestys Contingent 
Right of property in Vertue of your Seigneurie seems rather to be enlarged 
than diminished.^ 

Because of these interests of the Crown, the Board came to the con- 
clusion which would seem to be inevitable in the premises, that neither 
province should have entered into an agreement with the other, much less 
have appointed a commission to determine the boundaries without permission 
in advance and without confirmation of their acts by the Crown. Taking up 
the question of confirmation the Board obsened : 

But it has been further urged that the Crown has since Confirmed these 
Transactions, either by previous Declarations or by Subsequent Acquiescence, 
and consequently participated in them so far as to conclude itself. We shall 
therefore in the next place beg leave to Consider the Circumstance Urged for 
this purpose. 

IT has been alledged that the Crown, by giving Consent to the aforesaid 
Act passed in X'ew York in 1717 for paying and discharging several Debts 
due from that Colony &c.. included and bound itself with respect to the subse- 
quent proceedings had under the Commission issued by Governor Hunter. 

In this connection the Board states that the approval of the Act could not 
be said to be an approval of the commission, for which a small sum of money 
was appropriated, and the proceedings to be had under it, which could only 
derive their validity from specific approval in advance and confirmation after 
completion. It may be that the approval of the act, including this item, justi- 
fied Governor Hunter in the belief that he was authorized to appoint the com- 
mission, inasmuch as the moneys had been appropriated for it, and to enter 
into negotiations with X'ew Jersey on the basis of the commission. But an 

1 Ibid., Vol. viii, part 1, pp. 147-8. 



114 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

examination of the text of the act, which is a revenue bill of enormous length, 
in which this clause is an item as difficult to find as is a needle in a haystack, 
will assuredly cause anybody who consults it not to sit in judgment on the 
Board of Trade for what might otherwise be considered as an inadvertence, 
oversight or slip. 

The Board then takes up and discusses the subsequent approval of an agree- 
ment entered into between New York and Connecticut for the settlement of 
their boundaries, which had been pressed upon its attention as a precedent 
justifying the present action, regarding which the Lords Commissioners say: 

WE further beg leave humbly to represent to Your Majesty, that the lines 
of partition and Division between Your Majestys province of New York 
and Colony of Connecticut having been run and Ascertained pursuant to the 
Directions of an Act passed at New York for that purpose in the Year I7l9 
and Confirmed by his late Majesty in 1723, the Transactions between the said 
province and Colony upon that occasion have been alledged to be Similar to, 
and urged as a precedent and even as an approbation of the matter now in 
Question. But we are humbly of opinion, that the two Cases are materially 
and essentially different. The Act passed in New York in 1719 for running 
and Ascertaining the Lines of partition and Division between that Colony and 
the Colony of Connecticut Recites, " That in the Year 1683 the Governor and 
" Council of New York and the Governor and Commissioners of Connecticut 
" did in Council conclude an Agreement concerning the Boundaries of the 
" two Provinces ; that in Consequence of this Agreement Commissioners and 
" Surveyors were appointed on the part of each Government who did actually 
" agree. Determine and ascertain the Lines of partition, marked out a Certain 
" part of them and fixed the point from whence the remaining parts should 
" be run, that the several things agreed on and done by the said Commissioners 
" were ratified by the respective Governors, entered on Record in each Colony, 
" and in March 1700 approved and Confirmed by order of King William the 
" third in His privy Council and by his said Majestys Letter to his Governor 
" of New York." 

From this Recital it Appears to Us that those Transactions were not only 
carried on with the participation, but Confirmed by the Express Act and 
Authority of the Crown, and that Confirmation made the foundation of the 
Act passed by New York for Settling the Boundaries between the two prov- 
inces ; of all which Authority and Foundation the Act we now lay before your 
Majesty appears to us to be entirely destitute.^ 

The New Jersey act, therefore, of 1747-8, was disallowed for the reasons 
set forth at length before this digression. But the dispute would not down, 
and, as the initiative of New Jersey had failed, New York passed an act on 
December 7, 1754,^ by the terms of which the dispute was referred to the 
adjudication of the Crown, and, on June 12, 1755, the Lords of Trade in an 
opinion to the Lords Justices, acting as Regents in the absence of the King 
from England, recommended that this Act be disallowed for the objections 
stated in the following passage of their recommendation: 

''-Documents Relating to the Colonial History of New Jersey, Vol. viit, Part 1, pp. 149-150. 
^Laws of New-York from the nth Nov. 1752, to 22d May 1762 (1762), Vol. ii, p. 41. 



FURTHER COLONIAL PRECEDENTS 115 

It is improper as the method of determination which it proposes is un- 
usual and contrary to the constant practice in cases of the Hke nature : ques- 
tions of disputed boundary, whereby private property may be affected, having 
never been determined by the Crown in the first instance but always by a 
Commission from his Maje'^ with liberty to all parties which shall think them- 
selves aggrieved by the Judgement of the Commiss'"^ to appeal to His IMaj'^ 
from their decision. It is also improper, because, altho' the very object of the 
Act is to submit the matter in dispute, as far as private property is concerned, 
to the determination of His Maj''' yet, it previously ascertains in some de- 
gree the limits of private Right and property, by declaring that certain 
patentees, therein mentioned shall not extend their claims beyond a limit there- 
in described; and if it was not liable to these objections, yet it would be in- 
effectual, as the Proprietors of New Jersey, have not consented to the method 
of decision therein proposed. For all which reasons we humbly beg leave, 
to lay the said Act before your Excellencies, for your Excellencies disal- 
lowance. 

We beg leave further to represent to your Excellencies, that it appears to 
us to be of the greatest importance to the peace and tranquility of the two 
Provinces, that some certain line of property and Jurisdiction should be speed- 
ily settled between them, which, as we conceive, can only be done by a Com- 
mission to be issued in the same manner and under the same regulations as 
that issued in the year 1737, for running the boundary between the Provinces 
of the Massachusetts Bay and JSlew Hampshire, with liberty to either party 
who shall think themselves aggrieved, to appeal to His ^lajesty in his Privy 
Council. The Agent for the Proprietors of New Jersey declared himself 
willing to concur in this measure, and has offered to give ample security, that 
the said Proprietors shall and will defray one half of the expence of such a 
Commission, but the Agent of New York, not being authorised by his Con- 
stituents has declined entering into such an agreement. We would there- 
fore humbly propose to your Excellencies, that an additional Instruction be 
given to His Maj'^'^ Gov"", of New York directing him to recommend it to the 
Assembly of that province to make provision for defraying one half of the 
expence of obtaining and executing such Commission, as aforesaid, whenever 
his Maj'^ shall be graciously pleased to issue it.^ 

Owing to the French and Indian War, the New York Assembly felt itself 
unable to bear its share of the expenses in running the line, and tlie moneys 
were not appropriated. However, when the French and Indian War had 
practically ended. New York gave its consent by Act of December 11, 1762,^ 
to the adjustment of the boundary by Royal Commission or otherwise, and 
agreed to the payment of " one equal Half Part of the Joint Expence to ac- 
crue on the final Settlement of the said Controversy, and the Boundary Line 
between the said Colonies." 

The Colony of New Jersey by Act of February 23, 1764,^ a year after the 
Treaty of Peace, did likewise. A commission was substituted for the Crown 
on October 7, 1767, consisting of thirteen persons chosen from the different 

'^Documents Relating to the Colonial History of New Jersey, Vol. viii, Part 2, pp. 109-110. 
Pursuant to this recommendation the Lords Justices on June 24, 1755, disallowed the Act. 
Ibid., pp. 114-5; see also Documents Relating to Colonial History of New York, Vol. vi, p. 
952. 

2 Pratt, Boundaries, Vol. ii, pp. 747-9. 

8 Ibid., pp. 750-2. 



116 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

colonies, of whom any five could act. Seven of the Commissioners, with John 
Jay as Clerk of the Commission, met in the City of New York on July 18, 
1769. They were Charles Stewart, Esq., Surveyor General of the Customs 
for the District of Quebec, President; Andrew Elliot, Esq., Receiver General 
of Qtiit Rents in the Province of New York; Samuel Holland, Esq., Surveyor 
General of Lands for the Northern District of America ; Andrew Oliver, 
Esq., Secretary of the Province of Massachusetts Bay; Charles Morris, Esq., 
Surveyor of Lands and one of the Council of the Province of Nova Scotia; 
and Jared Ingersoll, Esq., of the Colony of Connecticut. After hearing the 
evidence presented by the colonies in dispute, four of the commissioners, 
Messrs. Stewart, Oliver, Elliot and Ingersoll, present on October 7, 1769, 
rendered a majority opinion, and two thereof, Messrs. Holland and Morris, 
a minority opinion. The text of the majority opinion is not uninteresting in 
itself, and may well serve as a model of proceedings of this kind : 

THE AGENTS on the part of both Colonies, having offered to the Court 
all that they thought necessary or proper in Support of their respective 
Claims, and the Court having Considered the Same, DO FIND 

THAT King Charles the Second by his Letters patent bearing date the 
twelfth day of Alarch, 1664, did Grant and Convey to his Brother the Duke 
of York, All that Tract of Country and Territory now Called the Colonies 
of New York and New Jersey ; and that the said Duke of York afterwards 
by his Deed of Lease and Release bearing Date the 23d and 24th days of 
June, 1665, did Grant and Convey to Lord Berkley of Stratton and Sir George 
Carteret, that part of the Aforesaid Tract of Land Called New Jersey. The 
Northern Bounds of which in said Deed are described to be " to the north- 
ward as far as the Northernmost Branch of the said Bay or River of Dela- 
ware which is in 41 deg. 40 min. of Latitude and Crosseth thence in a 
Straight Line to Hudson's River in 41 deg. of Latitude." 

We further find amoung the many Exhibits a Certain Map compiled by 
Nicholas John Vischer, and published not long before the aforesaid Grant 
from the Duke of York, which we have reason to believe was Esteemed the 
most Correct Map of that Country at the Time of the said Grant, on which 
Map is Laid down a Fork or Branching of the River then called Zuydt River 
or South River now Delaware River in the Latitude of 41 deg. and 40 min., 
which Branch we Cannot doubt was the Branch in the Deed from the Duke 
of York called the Northernmost Branch of the said River, and which in the 
Deed is said to lye in the Latitude of 41 deg. and 40 min. And from a Care- 
full Comparison of the several Parts and Places Laid down on the said Map, 
some of which, more Especially towards the Sea Coast and on Hudson's 
River We have Reason to believe were at that time well Known. The Dis- 
tance of the said Branch from the Sea Shore on the South, and the Relative 
situation of the same with regard to other places and the Lines of Latitude as 
they appear to be laid down on the said Map at that and other places in the 
Inland County : We are of opinion that the said Branch so laid down on the 
said Map is the Fork or Branch formed by the Junction of the Stream or 
Water Called the Mahackamack with the River Called Delaware or Fishkill 
and that the same is the Branch Intended and referred to in the before men- 
tioned Deed from the Duke of York, as the Northern Station at the 
River Delaware, which Fork or Branch We find by an observation taken by 



FURTHER COLONIAL PRECEDENTS 117 

the Surveyors appointed by the Court, to be in the Latitude of 41 deg. 21 
min. and 37 seconds. 

We are further of opinion that the Northern Station at Hudson's River 
being by the Words of the Said Deed from the Duke of York, Expressly 
Limited to the Latitude of 41 deg. should be fixed in that Latitude, which 
Latitude we have caused to be taken in the best manner by the Surveyors 
appointed by the Court, and which falls at a Rock on the West Side of Hud- 
son's River marked by the said surveyors, being 79 Chains and 27 Links to 
the Southward on a Meridian from Sneydon's House, formerly Corbet's. 

IT IS THEREFORE the final Determination of the Court That the 
Boundary or Partition Line between the said Colonies of New York and New 
Jersey be a direct and straight Line from the said Fork at the IMouth of the 
River Mahackimack in the Latitude of forty-one Degrees twenty-one Minutes 
and thirty-seven Seconds to Hudson's River at the said Rock in the Latitude 
of forty-one degrees as above described.^ 

As to the subsequent proceedings, it is to be said that the New York as- 
sembly passed an act on February 16, 1771,^ ratifying the judgment of the 
Commission, and that New Jersey on its part passed an act September 26, 
1772, referring to the act of New York confirming the judgment of the Com- 
mission,^ conditioning its acceptance upon the allowance of the New York Act 
by his Majesty in Council. Therefore on September 1, 1773, the King in 
Council decreed as follows : 

Whereas the Governor of His Majesty's Colony of New York, with the 
Council and Assembly of the said Colony, did in February 1771, pass an act 
which hath been transmitted in the Words following — Viz'. 

" An Act for Establishing the Boundary or Partition Line between the 
Colonies of New York and Nova Caesarea or New Jersey and for Confirming 
Titles and Possessions." . . . 

Which Act, together with a Representation from the Lords Commissioners 
for Trade and Plantations thereupon, having been referred to the Considera- 
tion of a Committee of the Lords of His Majesty's most Honorable Privy 
Council for Plantation Affairs, the said Lords of the Committee did this Day 
Report as their opinion to His Majesty, that the said Act was proper to be 
approved — Flis Majesty taking the same into Consideration, was pleased, 
with the advice of His privy Council, to Declare his approbation of the said 
act; and pursuant to His Majesty's Royal Pleasure thereupon Expressed, 
the said Act is hereby Confirmed, finally Enacted and Ratified accordingly 
— Whereof the Governor Lieutenant, Governor or Commander in Chief 
of His Majesty's said Colony of New York for the time being, and all others 
whom it may concern are to take Notice and Govern themselves accordingly.* 

The case of New York v. New Jersey, the proceedings of which have 
been stated with considerable fulness, began in negotiation and, through the 
intervention of the Board of Trade, ended in what may be called judicial de- 

1 Pratt, Boundaries, yd. ii, pp. 769-70. 

2 Ibid., pp. 782-5. 

3 Ibid., 78&-7. 
* Ibid., 789. 



118 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Debt to 
Litigious 
Rhode Island 



fustice to the 
Small State 



cision. There are, however, two cases, shorter and less detailed, and which, 
with slight changes in the caption and in the phraseology of the opinion, might 
properly appear as judgments of the Supreme Court of the United States in 
the series of cases to which Rhode Island is a party. 

The first is that of Rhode Island v. Connecticut,^ decided in 1727, in which 
the boundary between Rhode Island on the west and Connecticut, its more 
powerful neighbor, was decided; and the second is that of Rhode Island v. 
Massachusetts,- decided in 1746, in which the eastern boundary of Rhode 
Island was determined in its favor against its stronger and aggressive neigh- 
bor to the east. And, without stopping to analyze these cases, models of their 
kind and of judicial, settlement, it may be proper to premise that partisans 
of judicial settlement are deeply indebted to the litigious little State, not only 
for these cases but for the seven lawsuits with the State of Massachusetts, 
decided by the Supreme Court of the United States and to be found in the 
official reports of that Tribunal, by virtue of which the northern boundary 
of Rhode Island, and therefore the southern boundary of Massachusetts, was 
finally determined. If the Atlantic Ocean had not been made the southern 
boundary of the little State by charter, it would no doubt have instituted a law 
suit to have that determined, as it did in the western, eastern and northern 
points of the compass. It thus furnishes, it is believed, the unique example of 
a State having submitted all disputes concerning its boundary to judicial de- 
cision, and thus having its bounds settled and its existence preserved by decree 
of court. Justice is indeed the shield and buckler of the smaller States, if 
they did but know it, for Rhode Island would, without the shadow of a doubt, 
have been swallowed up by Connecticut and Massachusetts had their land 
hunger not been stayed by the just hand of the judge.^ 

1 Acts of the Privy Council, Colonial Series, Vol. vi, p. 159, § 344. 

^ Ibid., -p. 267, §470. 

3 An accurate, industrious and well informed writer has this to say on the settlement of 
disputes of this kind between the colonies : 

" Boundary disputes between the several colonies were of even more pressing importance 
than were those with foreign nations. In 1700 none of the colonies had its limits so well de- 
fined that it was free from such controversies, and as time went on these questions had to be 
settled. It was difficult for the interested parties to arrive at a satisfactory agreement with- 
out recourse to some outside party: consequently the Board of Trade was the body to which, 
as a last resort, all these controversies were referred. . . . 

" As all settlements of a boundary controversy were, of necessity, ratified by laws passed 
by the colonial legislature, any such settlement could be invalidated by the action of the 
Board of Trade. If private individuals were injured in their property interests, they had 
just grounds for a complaint to the king, and such a complaint would involve the boundary 
dispute and its settlement. If, on the other hand, the interests of the crown were at stake, 
it had to be made a party to the settlement or it would refuse to recognize its validity. Thus 
in either case the question would come before the crown for ratification. . . . 

" The regular method of procedure in settling a dispute was to secure the appointment of 
a royal commission. All the important boundary controversies, such as those between North 
Carolina and Virginia [The commissions for settling this boundary were joint tribunals, ap- 
pointed partly by the crown and partly by the proprietaries. See : North Carolina Colonial 
Records, vol. i, 703, 716, 735, 750, vol. iii, 12, 17.], North and South Carolina [Ibid. vol. iv, 
28.], New York and Massachusetts fProposed but not carried into execution. See: Pratt's 
Boundaries of New York vol. ii, 88-225.], and the latter province and New Hampshire [Com- 



FURTHER COLONIAL PRECEDENTS 119 

Second, as to appeals from judicial decisions of a colony involving the con^oversies 
setting aside of colonial laws and the reversal of decisions of colonial courts lIws^°^°°'^' 
based upon such laws. 

In 1699 the colony of Connecticut passed an act regulating the descent 
of estates of persons dying intestate, allowing the children of the deceased, 
females as well as males, to share in the distribution of the realty, reserv- 
ing only to the eldest son a double portion instead of casting upon him the 
realty in its entirety, as in the common law of England.^ The charter of 
Connecticut allowed the colony " from Time to Time to Make, Ordain and 
Establish all manner of wholesome, and reasonable Laws, Statutes, 
Ordinances, Directions, and Instructions, not Contrary to the Laws of this 
realm of England/' - There was .no reservation in the charter for the 
transmission of the laws to England, there to be approved by the Crown 
before they went into effect, or to go into effect subject to be set aside by 
the Crown within a certain period. 

The colonial officials elected by the freemen of the colony were not 
anxious to awaken sleeping dogs, if that homely expression rather than 
lions be applied to the mother country, and laws claimed to be in excess 

mission of 1737. See: New York Colonial Documents, vol. vi, pp. 823, 953.] and Rhode 
Island [The commissioners in this case were Cadwallader Colden, Abraham Vanhorn, Phillip 
Livingston, Archibald Kennedy, and James De Lancey of New York; John Hamilton, John 
Wells, John Reading, Cornelius Vanhorn, and William Provost of New Jersey; and William 
Skeene, William Shirreft, Henry Cope, Erasmus James Phillips, and Otho Haymilton of 
Nova Scotia. See: Board of Trade to Governor Clinton. Ibid., 167-168.], were settled in 
this way. These commissioners were appointed by the Board of Trade upon the authority 
of an Order in Council, were composed of men selected from the neighboring colonies, and 
were usually paid by the two parties to the controversy. This method of payment required 
the consent of both parties, but it seldom happened that a colony refused to bear its share 
of the charges. [In regard to a commission for settling the boundary between Massachu- 
setts and Rhode Island, the Board says the ' charges of which and the execution thereof the 
agents for the Massachusetts Bay and Rhode Island have agreed are reasonable equally to 
be bourne by both provinces.' — Letter to Clinton, .August 1, 1740. Ibid., 167-168.] In some 
cases the Board secured authority to pay the expenses of such commissions from the quit 
rents of the provinces concerned, as was done in settling the southern boundary of Virginia 
in 1711 and again in 1729 [North Carolina Colonial Records, vol. iii, 13, 17, vol. iv, 28.] . . . 

" It is thus seen that the Board of Trade acted as a high court of arbitration for disputes 
as to territory or jurisdiction. It did not settle disputes on its own authority, but it pro- 
vided a way by which such controversies could be determined by special commissions. These 
were in reality special courts of arbitration, which had power to settle the questions at issue, 
but from which an appeal would lie to the Board. [In form it was an appeal to the king, 
but as all such complaints and appeals were heard by the Board of Trade, it was in reality 
an appeal to that body.] If either party were dissatisfied with the decision of such a com- 
mission, it could prosecute a complaint in the usual manner; and if its work should appear 
irregular, another commission was issued to rehear the case. In all this there was an evi- 
dent attempt to do justice to all parties concerned. . . . The clause in the Constitution re- 
garding changes in state boundaries is but a recognition of the constant practice of the Board 
of Trade in settling disputes of this character. . . ." (Oliver Morton Dickerson, American 
Colonial Government, 1606-1765, pp. 287, 288, 290-91, 295). 

The learned writer might have added that such action of the King in Council through the 
Board of Trade is the precedent for the 9th of the Articles of Confederation, and it would 
appear, of that large and beneficent jurisdiction with which the Supreme Court of these 
United States has been endowed by Article II, Section 2 of the Constitution thereof. — Ed. 

'^The Public Records of the Colony of Connecticut, [Vol. /] i68g to J706, C. J. Hoadly 
ed., 1868, pp. 306-9. 

2 Thorpe, Charters and Constitutions, Vol. 1, p. 533; Poore, p. 255. 



120 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of this grant would reach the King in Council or the Board of Trade through 
private parties and upon private initiative if at all. In this case the trans- 
mitter was at hand in the person of John Winthrop, son of Wait Still 
Winthrop, Major General of Massachusetts and Chief Justice of its Superior 
Court, who died intestate in 1717 owning personalty and realty in Connecti- 
cut, in which colony he had himself been bom a son of the Governor thereof 
but had preferred to grace Massachusetts by his presence. John Winthrop, 
of whom Carlyle's mother would doubtless have said, as she said of her 
son, " he was an ill man to live with," had a sister, Anne, who married a 
well connected but not too well to do person by the name of Lechmere, who 
resided at that time in Boston. On behalf of his wife, he claimed one por- 
tion of the realty of the father-in-law's Connecticut estate. Winthrop was 
appointed administrator by the Court of Probates for the County of New 
London, Colony of Connecticut, in which the realty was situated, and, con- 
tending that he was entitled to the real property according to the doctrine 
of primogeniture, obtaining in the common law of England, did not in- 
clude the realty in his inventory, as he should have done according to the 
Connecticut act of 1699 for the settlement of intestate estates. The Court 
of Probates therefore rejected the inventory and Winthrop, as administrator, 
thereupon appealed to the Superior Court. Pending the appeal, Lechmere 
applied to the Court of Pf-obates for new letters of administration, which, 
however, denied his motion. Thereupon, on appeal to the Superior Court, 
having the two appeals before it at one and the same time, it decided both 
of them against Winthrop. The General Assembly refused to intervene in 
his behalf or allow an appeal to the King in Council. The appeal, however, 
was made by Winthrop and allowed by the King in Council, and the case 
on appeal referred to the Committee for Hearing Appeals from the Planta- 
tions. 

Before this Committee Sir Philip Yorke, then Attorney General and later 
Lord Chief Justice of the King's Bench and Lord High Chancellor, known 
to lawyers as Lord Hardwicke and to the English speaking world as the 
greatest of equity judges, and Sir Charles Talbot, then Solicitor General, 
later Lord Chancellor Talbot, less known perhaps but hardly less deserv- 
ing than Hardwicke, who succeeded him in the Chancellorship, appeared 
on behalf of Winthrop. On behalf of Lechmere one Willes, supposed to be 
Sir John Willes, later Attorney General and Lord Chief Justice of the 
Common Pleas, and an English barrister by the name of Barton, appeared. 

Without referring the appeal to the Board of Trade, as was usual in such 
cases, the Committee for Hearing Appeals from the Plantations heard coun- 
sel for plaintiff and defendant and, after argument, recommended that the 
Connecticut act of 1699 for the settlement of intestate estates, and subse- 



FURTHER COLONIAL PRECEDENTS 121 

quent acts in the case, be declared null and void as contrary to the common ^^^°*^'||„t 
law of England, and that the decisions of the Connecticut courts as against |?;,,^fo"f'"^ 
Winthrop's contention and in favor of Lechmere and his wife be reversed courtTo^Deciare 
and set aside as based upon the Connecticut statutes contrary to the charter, uSonsSutioni 
or, as we should say, as unconstitutional. 

As the decree of the King in Council approving the recommendation of 
the Lords of Appeal was well known to the colonists, extending the judicial 
power to acts of the legislature as well as to judgments of a colonial court, 
and is the great precedent for investing the Supreme Court of the United 
States with the power of pronouncing laws unconstitutional and reversing 
decisions of courts of justice, whether of the State or of the United States, 
based upon such acts of Congress or such provisions of State constitutions, 
the material portion of the report of the Lords of Appeal, confirmed by the 
King in Council, is given in its exact words : 

Their Lordships, upon due consideration of the whole matter, do agree 
humbly to report as their opinion to your jNIajesty, that the said act for the 
settlement of intestate estates should be declared null and void, being contrary 
to the laws of England in regard it makes lands of inheritance distributable 
as personal estates and is not warranted by the charter of that colony ; and that 
the said . . . sentences . . . rejecting the inventory . . . because it did not 
contain the real as well as personal estate . . . may be all reversed and set 
aside ; and that the said sentence vacating the said letters of administration 
to the said Thomas and Anne Lechmere should also be reversed and set aside.^ 

Commentary upon this case could only weaken its force and effect as 
the younger Pitt is reported to have said of Erskine's speech following that 
of Fox, that it only repeated and weakened the arguments of that right 
honorable gentleman. 

By the charter of June 26, 1632, the second Lord Baltimore was granted 
the province, now the State of Maryland, bounded on the north by the 
40th parallel of North Latitude, on the west and southwest by a line south 
of this parallel to the farthest sources of the Potomac, and thence the 
"further bank" of that river to Chesapeake Bay; on the south by a line 
across the Bay and peninsula to the Atlantic Ocean ; and on the east by that 
Ocean and Delaware Bay and River.- 

1 Privy Council, 1728 (Connecticut Colonial Records, 1726-1735, pp. 571, 577). See also 
J. B. Scott, Judicial Settlement of Controversies Between States of the American t/nion. Vol. 
i, pp. 93-8. 

2 The portion of the charter relating to the boundaries of the colony is, in English trans- 
lation, as follows : _ 

" AH that Part of the Peninsula, or Chersonese, lying in the Parts of America, between 
the Ocean on the East, and the Bay of Chesapeake on the West, divided from the Residue 
thereof by a Right Line drawn from the Promontory, or Head-Land, called Vv'atkin's Point, 
situate upon the Bay aforesaid, near the River of Wigloo, on the West, unto the Main Ocean 
on the East; and between that Boundary on the South, unto that Part of the Bay of Dela- 
ware on the North, which lieth under the Fortieth Degree of North Latitude from the Equi- 
noctial, where New England is terminated; And all that Tract of Land within the Metes 



122 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

On March 14, 1681, a charter was granted to William Penn of the 
tract of territory now known as Pennsylvania in honor of its first proprietor, 
including, as claimed by Penn, the three lower counties now known as 
and forming the State of Delaware. The territory was, according to the 
charter, " bounded on the East by Delazvare River, ffom twelve Miles Dis- 
tance Northwards of Nezvcastle Town unto the three-and-fortieth Degree 
of Northern Latitude, if the said River doth extend so far Northward; but 
if the said River shall not extend so far Northward, then by the said River 
so far as it doth extend ; and from the Head of the said River, the Eastern 
Bounds are to be determined by a Meridian Line, to be drawn from the 
Head of the said River unto the said Forty-third Degree. The said Land 
to extend Westward five Degrees in Longitude, to be computed from the 
said Eastern Bounds ; and the said Lands to be bounded on the North by 
the Beginning of the Three-and-fortieth Degree of Northern Latitude, 
and on the South by a Circle drawn at twelve Miles Distance from Nezv- 
castle Northward, and Westward unto the Beginning of the Fortieth Degree 
of Northern Latitude, and then by a straight Line Westward to the Limits 
of Longitude, above-mentioned." ^ 

It will be observed that this grant does not include the town of New- 
castle but begins at a point twelve miles to the north thereof. It thus ex- 
cluded the three lower counties, or, in short, the State of Delaware. William 
Penn's claim to Delaware is based upon subsequent transactions. On August 
24, 1682, he purchased a quit claim from the Duke of York to the lands west 
of the Delaware River embraced in the grant of Charles II of March 12, 
1664, to James, Duke of York, and the confirmation of that grant by 
letters patent dated June 29, 1674, from Charles II to his brother, the Duke 
of York. 

To the- laymen it would appear that Pennsylvania could not extend 
below 40° North Latitude, inasmuch as the province of Maryland was de- 
clared by its charter of 1632 to extend to that point, and that degree of 
latitude was likewise declared to be its northern boundary. It is true that 
the grant of Charles II to his brother, the Duke of York, of " all the main 
land of New England . . . and all the land from the west side of Connecti- 

underwritten (that is to say) passing from the said Bay, called Delaware Bay, in a right 
Line, by the Degree aforesaid, unto the true meridian of the first Fountain of the River of 
Pattowmack, thence verging towards the South, unto the further Bank of the said River, 
and following the same on the West and Soutli, unto a certain Place called Cinquack, situate 
near the Mouth of the said River, where it disembogues into the aforesaid Bay of Chesa- 
peake, and thence by the shortest Line unto the aforesaid Promontory or Place, called Wat- 
kin's Point ; so that the whole tract of land, divided by the Line aforesaid, between the main 
Ocean and Watkin's Point, unto the Promontory called Cape Charles, and every the Ap- 
pendages thereof, may entirely remain excepted for ever to US, our Heirs and Successors." 
F. N. Thorpe, The Federal and State Constitutions, Colonial Laws, etc. of the United States, 
1909, Vol. iii, p. 1678. 

1 The Charters and Acts of Assembly of the Province of Pennsylvania, 1762, Vol. i, p. 1. 



FURTHER COLONIAL PRECEDENTS 123 

cut to ye east side of Delaware Bay, confirmed by the letters patent of 
1674," included Delaware, or was claimed to do so. Penn was anxious to 
secure the tract of land from his little city of Philadelphia on the Delaware 
River, and through which the fortieth degree of north latitude ran, to the 
mouth of the Delaware Bay, some ninety miles to the south, and he took 
care to purchase and acquire the title to this tract claimed by the Duke of 
York under the two grants in question. On the other hand, the proprietor of 
Maryland was anxious to ha^•e his proA'ince extend to the fortieth degree 
of north latitude and be bounded on the north throughout its entire extent 
by that parallel of latitude. 

Here was a dispute involving a vast domain, claimed by Lord Baltimore f^^^"' 
under a charter of 1632 granted by Charles I, to which William Penn laid Baltimore 
claim under a charter granted by Charles II in 1664. The title of the son was 
preferred to that of the father, contrary to the time honored maxim of the law, 
prior in tempore, potior in jure. 

The Duke of York appears to have doubted his title to the three lower 
counties, or at least thought it well to have whatever cloud there might be 
upon his title cleared up. He therefore applied to his royal brother, Charles 
II, for the grant of the counties, which appears to have been made, and 
which would inure to Penn's benefit, although it might have been and was 
contended that the grant to the Duke of York subsequent to his sale and 
conveyance of the same territory to Penn was an evasion, that the title was 
not, at the time of the earlier transaction, in the Duke, and that therefore 
it could not pass to his grantee. 

When the news of the proposed grant of the lower counties to the Duke 
of York became known to Lord Baltimore, he prayed that it should not be 
made, in that the territory in question was comprised within his province. 
Baltimore's petition was referred to the Lords Commissioners for Trade and 
Plantations, who, under date of November 13, 1685, reported that, " Having 
examined the matters in difference between the Lord Baltimore and William 
Penn, Esq., on behalf of His then Majesty, concerning a tract of land called 
Delaware, they found the land intended to be granted to Lord Baltimore 
was only lands uncultivated, and inhabited by savages; and that the tract 
of land then in dispute, was inhabited and planted by Christians at and be- 
fore the date of the Lord Baltimore's patent, as it had ever -been since, to 
that time, and continued as a distinct colony, from Maryland, so that their 
Lordships humbly offered their opinion, that for avoiding further differ- 
ences, the tract of land lying between the river and the eastern sea, on the 
one side, and Chesapeake Bay on the other, be divided into equal parts, by 
a line from the latitude of Cape Henlopen to the 40th degree of northern 
latitude; and that one-half thereof, lying towards the bay of Delaware and 



124 THE UNITED STATES: A STUDY IN INTERN'ATIONAL ORGANIZATION 

the eastern sea, be adjudged to belong to his Majesty, and the other half 
to Lord Baltimore." ^ 

This- report His Majesty approved, it was also affirmed in 1709 by Queen 
Anne in Council, and by this interpretation of the grants in question Penn 
would acquire that part of the three counties bordering on the Delaware 
River and the ocean as far south as Cape Henlopen, and Lord Baltimore 
the western half thereof. The boundaries, however, would remain to be 
run and marked, and, after much delay, an agreement was entered into, 
dated May 10, 1732, between Penn's sons, on the one hand, and the then 
Lord Baltimore, on the other, providing for the determination of the line 
by commissioners on or before Christmas, 1733. The line, however, was 
not drawn before the expiration of this time. The Penns thereupon peti- 
tioned the Privy Council to have the agreement executed, but the Committee 
for Hearing Appeals from the Plantations recoriimended, on May 10, 1735, 
"that the Consideration of the said Report and Petitions should be adjourned 
until the end of Michaelmass Term next in Order to give an Opportunity 
to the said John Thomas and Richard Penn to proceed in a Court of Equity 
to obtain relief upon the said Articles of Agreement so insisted upon by 
them according as they shall be advised." ^ Therefore the Penns filed their 
bill in equity on June 21, 1731, for the specific performance of the articles 
of the agreement. 

In 1745 Lord Chancellor Hardwicke, before whom the case was hea*rd, 
thought the bill should be amended by making the Attorney General a party 
on behalf of the Crown.^ As amended, the bill was heard and, in 1750, the 
specific performance of the articles of agreement was decreed by Lord Hard- 
wicke.* For present purposes it is sufficient to say that the plea to the juris- 
diction of the court taken by Lord Baltimore was overruled, and properly, 
for although the lands lay beyond the jurisdiction of the court, the parties 
plaintiff and defendant were before it, and as equity acts in personem they 
could properly be, and they were ordered in England to perform the act in 
America. 

This is, however, a matter of equity practice and procedure. The im- 
portant point for us is that the Privy Council refused to assume jurisdiction, 
aind, by means of commissions, to determine the boundaries in dispute, since 
there was an agreement between the parties on the very question, enforcible 
in equity. There was no need to resort to the King in Council, because the 
parties had their day in court. The question was therefore settled, upon 

1 Chalmers, Opinions of Eminent Lawyers, pp. 86-7. 

2 Acts of the Privy Council, Colonial Series, Vol. iii, p. 336. 

^Penn. v. Lord Baltimore (Ridgeway temp. Hardwicke, i?)2; Reprint, English Reports, 
Vol. 27, p. 1132). 

*Penn. v. Lord Baltimore (1 Vesey Sr., 444). 



FURTHER COLONIAL PRECEDENTS 



125 



great deliberation, by the first of English Chancellors, that boundaries be- 
tween provinces as large as kingdoms did not need to be settled by force of 
arms; that disputes of this nature were susceptible of judicial determination, 
and that an agreement to settle the dispute and to draw the boundaries in a 
particular manner made the question judicial, to be passed upon in a court of 
justice, although it might have been considered political, in the absence of 
an agreement, and as such been passed upon by the King in Council. 

The case of Penn v. Lord Baltimore was, therefore, a precedent for the Difputl"^^' 
framers of the Constitution, clearly pointing out that political questions would jutticifbiT*^ 
become justiciable by an agreement to settle them, which, when made, could 
be interpreted and carried into execution by a court of justice. It was quoted 
as such in the leading case of Rhode Island v. Massachusetts (12 Peters, 657), 
decided in 1838, in which decision the distinction here taken was announced, 
and the procedure before the King in Council recognized as a precedent for 
investing the Supreme Court with jurisdiction of controversies between States. 
More recently Chief Justice White, in delivering the opinion of the court in 
Virginia v. West Virginia (246 U. S., 565, 597),^ decided in 1918, thus re- 
ferred to the case of Rhode Island v. Massachusetts and the proceedings in the 
Privy Council as a precedent, and gave to each, as such, the stamp of his 
approval : 

Bound by a common allegiance and absolutely controlled in their exterior 
relations by the mother country, the colonies before the Revolution were yet 
as regards each other practically independent, that is, distinct one from the 
other. Their common intercourse, more or less frequent, the contiguity of 
their boundaries, their conflicting claims, in many instances, of authority over 
undefined and outlying territory, of necessity brought about conflicting con- 
tentions between them. As these contentions became more and more irritat- 
ing, if not seriously acute, the necessity for the creation of some means of 
settling them became more and more urgent, if physical conflict was to be 
avoided. And for this reason, it is to be assumed, it early came to pass that 
differences between the colonies were taken to the Privy Council for settle- 
ment and were there considered and passed upon during a long period of 
years, the sanction afforded to the conclusions of that body being the entire 
power of the realm, whether exerted through the medium of a royal decree or 
legislation by Parliament. This power, it is undoubtedly true, was principally 
called into play in cases of disputed boundary, but that it was applied also 
to the complaint of an individual against a colony concerning the wrong- 
ful possession of property by the colony alleged to belong to him, is not dis- 
puted. This general situation as to the disputes between the colonies and 
the power to dispose of them by the Privy Council was stated in Rhode 
Island V. Massachusetts, 12 Pet. 657, 739, ct seq., and will be found reviewed 
in the authorities referred to in the margin. 

When the Revolution came and the relations with the mother country 
were severed, indisputably controversies between some of the colonies, of the 
greatest moment to them, had been submitted to the Privy Council and were 

1 .-Mso Scott. Judicial Settlement, Vol. ii, pp. 1751-73. 



126 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

undetermined. The necessity for their consideration and solution was ob- 
viously not obscured by the struggle for independence which ensued, for, by 
the Ninth of the Articles of Confederation, an attempt to provide for them 
as well as for future controversies was made. Without going into detail it 
suffices to say that that article in express terms declared the Congress to be 
the final arbiter of controversies between the States and provided machinery 
for bringing into play a tribunal which had power to decide the same. That 
these powers were exerted concerning controversies between the States of the 
most serious character again cannot be disputed. But the mechanism de- 
vised for their solution proved unavailing because of a want of power in Con- 
gress to enforce the findings of the body charged with their solution, a de- 
ficiency of power which was generic, because resulting from the limited au- 
thority over the States conferred by the Articles of Confederation on Con- 
gress as to every subject. That this absence of power to control the govern- 
mental attributes of the States, for the purpose of enforcing findings con- 
cerning disputes between them, gave rise to the most serious consequences, 
and brought the States to the very verge of physical struggle, and resulted in 
the shedding of blood and would, if it had not been for the adoption of the 
Constitution of the United States, it may be reasonably assumed, have ren- 
dered nugatory the great results of the Revolution, is known of all and will 
be found stated in the authoritative works on the history of the time. 

The views of the Chief Justice can not be gainsaid. If, however, con- 
temporary exposition is preferred, as to the nature, function and role of 
the Privy Council in the administration of justice and the maintenance of 
order upon the basis of law, it is at hand, for in the seventeenth article of the 
Constitution of Delaware, adopted on Friday, September 20, 1776, by the three 
lower counties of Pennsylvania, forming " The Delaware State," as it was 
then called, it is provided that : " There shall be an appeal from the supreme 
court of Delaware in matters of law and equity, to a court of seven persons, 
to consist of the president for the time being, who shall preside therein, and 
six others, to be appointed, three by the legislative council, and three by the 
house of assembly, who shall continue in office during good behaviour, and be 
commissioned by the president under the great seal ; which court shall be 
stiled, The Court of Appeals, and have all the authority and powers hereto- 
fore given by law in the last resort to the king in council, under the old gov- 
ernment." ^ 

1 The Constittitions of the Several Independent States of America, 1781, p. 111. 



VI 
ESTABLISHMENT OF STATE CONSTITUTIONS 

In short, these legislators derive their power from the constitution, how then can they 
change it, without destroying the foundation of their authority? (M. de Vattel, The Law 
of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of 
Nations and Sovereigns, 1758, Translated from the French Vol. I, 1760, Book I, Chapter 

niA34.p- 18.) 

To examine the Union before we have studied the State would be to adopt a method 
filled with obstacles. . . . The great political principles which now govern American society 
undoubtedly took their growth in the State. {Alexis de Tocqueville, De la Democratic en 
Amerique, 2 Vols., 1835, Vol. I, p. 80.) 

"At a meeting of the Inhabitants of the Town of Concord being free and Twenty- 
one years of age and upward, upon adjournment on the twentyfirst Day of October, 1776, 
Ephraim Wood Junr being Moderator, Voted unanimously that the Present House of 
Representatives is not a proper Body to form a Constitution for this State. And Voted to 
Chuse a Committee of five men to make answer to the Question Proposed by the House of 
Representatives of this State and to Give the Reasons why the Town thinks them not 
a suitable body for that Purpas, the persons following was Chosen the Committee above 
mentioned, viz. Ephraim Wood Junr, IMr. Nathan Bond, Col. James Barrett, Col. John 
Buttrick, and James Barrett esqr. And the Committee Reported the following Draft which 
being Read several times over for Consideration it then was Read Resolve by Resolve and 
accepted unanimously in a very full Town meeting — the Reasones are as followes — 

"Resolved 1st, that this State being at Present destitute of a properly established 
form of Government, it is absolutely necessary that one should be immediately formed 
and established. 

" Resolved secondly that the supreme Legislative, Either in their proper capacity or 
in Joint Committee are by no means a Body Proper to form & Establish a Constitution 
or form of Government for Reasones following, viz — first Because we conceive that 
Constitution in its proper Idea intends a system of principals established to secure the 
subject in the Possession of and enjoyment of their Rights & Privileges against any 
encrouchment of the Governing Part. Secondly Because the same Body that forms a 
Constitution have of Consequence a power to alter it — thirdly Because a Constitution 
alterable by the Supreme Legislative is no security at all to the subject against the 
encrouchment of the Governing part on any or on all their Rights and Privileges. 

" Resolved thirdly that it appears to this Town highly expidient that a Convention 
or Congress be immediately chosen to form and establish a Constitution, by the Inhabi- 
tants of the Respective Towns in this State being free and Twentyone years and upward, 
in Proportion as the Representatives of this State were formerly chosen : the Convention 
or Congress not to consist of a greater number than the house of assembly of this 
State heretofore might consist of, except that Each Town & District shall have Liberty 
to send one Representative ; or otherwise as shall appear meet to the Inhabitants of this 
State in General. 

" Resolved 41y. That when the Convention or Congress have formed a Constitution, 
they adjourn for a short time, and publish their Proposed Cons^titution for the Inspection 
and Remarks of the Inhabitants of this State. 

" Resolved Sly. That the Honble. House of assembly of this State be Desired to 
recommend it to the Inhabitants of this State to Proceed to Chuse a Convention or 
Congress for the Purpas above mentioned as soon as possible. Signed by order of the 
Committee Ephraim Wood Ju Chairman, and the meeting was Desolved by the 
Moderator." 
(Roger Sherman Hoar, The Invention of Constitutional Conventions, 1918, in The Consti- 
tutional Review, vol. 2, pp. gg-ioo.) 

The elements of the British constitution, which the American people claimed as their 
inheritance, were not so much the customary forms which entered into the structure 
of the British government as those chartered privileges which might serve to protect them 
from the supervision and interference of autocratic power. What they most desired was 
to be let alone and to work out their own political salvation. And it was precisely when 

127 



128 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

and where they were least hampered by foreign control, and least influenced by foreign 
models, that they developed those political features which have become the most dis- 
tinctive characteristics of the American constitutional system. (William C. Morey, The 
First State Constitutions, Annals of the American Academy of Political and Social Science, 
1893, Vol. 4, p. 232.) 

The American colonists inherited the instincts of the English race. But under new 
circumstances they were called upon to work out problems which were peculiar to their own 
political life; and as a consequence of this we find that the constitutional system which 
grew up on this continent was an American and not a European product. Even those 
institutions which seem to have a general similarity to those which are foreign have here 
acquired specific characteristics which distinguish them from those belonging to any 
foreign country. {William C. Morey, The First State Constitutions, Annals of the American 
Academy of Political and Social Science, 1893, Vol. 4, pt. i, p. 203.) 

The first State constitutions were in their main features the direct descendants of the 
colonial governments, modified to the extent necessary to bring them into harmony, with 
the republican spirit of the people. Every State, either in a preamble or in a separate 
declaration of rights, prefaced its constitution by a statement of the chartered rights upon 
which it had always insisted ; and many of them also declared -in general terms the demo- 
cratic principles which their experience and reason had taught them and which had been 
partly realized in their previous governments. {William C. Morey, The First State Con- 
stitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, 
pt. I, p. 219.) 

In a previous paper published in this journal it was claimed that the real continuity in 
the growth of American constitutional law could be seen only by tracing: first, how the 
charters of the English trading companies were transformed into the organic laws of the 
early colonies ; second, how the organic laws of the colonies were translated into the con- 
stitutions of the original States ; and. finally, how the original State constitutions con- 
tributed to the Constitution of the Federal Union. {IVilliam C. Morey. The First State 
Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 
4, p. 202.) 

In applying the historical method to the study of the American political system it is 
not enough to trace the origin and growth of the various branches of the federal govern- 
ment. The origin of the forms of the federal government presents no great historical 
difficulties to one who has carefully studied the constitutional history of the early States 
and colonies. He finds that the central government of the United States, in its general 
structure and its various branches, is scarcely more than a reproduction on a higher plane 
of the government forms existing in the previous States, and more remotely in the early 
colonies. {William C. Morey, The Sources of American Federalism, American Academy 
of Political and Social Sciences, 1895, Vol. 6, p. 197.) 

"The powers of the states depend on their own constitution; the people of every state 
had the right to modify and restrain them according to their own views of policy or 
principle; and they remain unaltered and unimpaired, except so far as they were granted 
to the government of the United States. These deductions have been positively recognised 
by the tenth amendment." 1 Wh. 325. "The powers retained by the states, proceed not 
from the people of America, but from the people of the several states, and remain after 
the adoption of the constitution what they were before, except so far as they may be 
abridged by that instrument." 4 Wh. 193. S. P. ; 5 Wh. 17, 54; 9 Wh. 203, 9. "In our 
system, the legislature of a state is the supreme power ; in all cases where its action is not 
restrained by the constitution of the United States." 12 Wh. 347. "Its jurisdiction is 
coextensive with its territory, coextensive with its legislative power," 3. Wh. 387; "and 
subject to this grant of power, adheres to the territory as a portion of sovereignty not yet 
given away." The residuary powers of legislation are still in the state. lb. 389. " The 
sovereignty of a state extends to everv thing which e^-i=ts by its own authority, or is intro- 
duced by its permission." 6 Wh. 429: 4 Pet. 564. (^fr Justice Baldzvin. A General View 
of the Origin and Nature of the Constitution and Government of the United States, 
1837, PP- 14-15.) 



CHAPTER VI 

ESTABLISHMENT OF STATE CONSTITUTIONS 

When the members of the Second Continental Congress assembled in R^v^utiol 
Philadelphia on May 10, 1775, the King's troops and the provincials had met 
at Lexington and Concord @n April 19, 1775, with the result that the adven- 
turous sons of liberty were thronging to the aid of Boston. Here on the 
17th of June of that year, the British troops were worsted at Bunker Hill, only 
to reform and to carry the heights. Here they were hemmed in and held in 
check by the volunteers from different parts of the country, soon to be com- 
manded and ultimately led to victory by George Washington, the first Com- 
mander in Chief of the American Armies. These events made a great im- 
pression upon the members of Congress, as little by little news from the north 
reached their ears. What there took place on a large scale was taking place on 
a smaller scale in the different colonies. Resistance was offered to the royal 
authority, its officials were driven out by local leaders, and legitimate govern- 
ment in the former sense of the term ceased to exist. 

The colonies, soon to be States, were anxious as to the course they 
should take, and looked to the Congress for advice, as the one central, al- 
though a revolutionary body, which could keep in touch with the continent 
and suggest, if it could not command, what should be done by each in the 
interest of the whole. The far sighted foresaw independence, but the im- gesireto 

*= ^ Prevent 

mediate problem before them was to replace the old by new authority, and Anarchy 
to check anarchy, which often precedes as well as follows revolution, by 
local government. Feeling and fearing the absence of authority. New Hamp- 
shire asked permission of the Congress " to regulate its internal police," and 
on November 3rd that body recommended the provincial convention of New 
Hampshire " to call a full and free representation of the people, and that 
the representatives, if they think it necessar\', establish such a form of govern- 
ment, as, in their judgment, will best produce the happiness of the people, 
and most effectually secure peace and good order in the province, during the 
continuance of the present dispute between G[reat] Britain and the col- 
onies." ^ The next day the Congress gave similar advice to South Carolina, 
and, with or without advice, other colonies began to take action.^ 

But the approach of independence made general concerted action advis- 

^ Journals of the Continental Congress, Vol. iii, p. 319. 
2/6td., pp. 326-7. 

129 



130 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Recommen- ablc, atid therefore, on May 15, 1776, the Congress resolved " that it be 

dation of . . 

Congress recommended to the respective assemblies and conventions of the United 

Colonies, where no government sufficient to the exigencies of their affairs 
have been hitherto established, to adopt such government as shall, in the 
opinion of the representatives of the people, best conduce to the happiness 
and safety of their constituents in particular, and America in general." ^ 
Therefore the colonies which heretofore had not formed local governments 
now took steps to do so, transforming the charter of the colony into the con- 
stitution of the State in the light of their experience and according to the 
needs which that experience had disclosed. They were their own agents and 
had a free hand. They did not need to wrangle with the Crown about the 
terms, for the Crown was excluded from their deliberations. Nor did they 
need to conform to the views of the Congress as to the provisions of their 
constitutions, for the Congress, while it could recommend, could not com- 
mand. The ideas, therefore, which had slowly taken shape in the colonies 
and which had approved themselves in practice, or which were thought to 
be advisable, were now incorporated in the constitutions of the States. For 
this reason the constitutions can be taken as the solemn and formal expres- 
sion of their views on government during the decade between the Declaration 
of Independence and the meeting of the Annapolis Convention of repre- 
sentatives of five States, which recommended the Congress to call a conven- 
tion of all the States to frame an instrument of government which should 
be a constitution for the States in union and a constitution for each of the 
States considered separately. 

The leaders of opinion in each of the colonies preserved those provisions 
of the charters, or, in the absence of a charter, the royal instructions, which 
met with the approval of their constituents, together with the views generally 
obtaining, and transferred and incorporated them in the constitutions of each 
of the States. The leaders of opinion, who had either framed or had had a 
hand either in the framing or in the administration of these instruments of 
government, or who had lived under these constitutions and were therefore 
familiar with their provisions, were chosen to represent their States in the 
convention of the States called to meet in Philadelphia on the second Monday 
of May, 1787, to revise the Articles of Confederation. Because they drafted 
a constitution instead of contenting themselves with a revision of the Articles, 
their assembly is affectionately called the Constitutional Convention, although 
it would with equal propriety be called, as it often is, the Federal Convention, 
as, in view of the facts, it should be termed the international conference of 
the American States. 

As in the State conventions so in the international conference, the leaders 

^Journals of the Continental Congress, Vol. iv, p. 342, Session of May 10. 



ESTABLISHMENT OF STATE CONSTITUTIONS 131 

of opinion transferred such of the Articles of Confederation as had justified p^fi"^?" 
themselves, such of the provisions of the State constitutions as seemed ap- ^^i^"""*^ 
plicable to the new instrument of general government, and incorporated their 
terms in the Constitution of the United States. It is therefore important to 
consider in this place and in this connection the fundamental conceptions of 
the colonial charters and of the State constitutions, in order that we may under- 
stand the political attitude and mental equipment of the delegates meeting 
in conference in Philadelphia. 

For the view that the States had a free hand, that thev naturally and inevit- influence 

of Charters 

ably formed the kind of government they wanted, that in so doing they 
modified the charter in the form and to the extent which they thought neces- 
sary, using it, however, as the basis of discussion, as they had grown up under 
it and it was, as it were, bone of their bone and flesh of their flesh, we need 
only turn to Connecticut and Rhode Island, without indulging in speculation 
upon this matter. These two colonies were so content with their charters 
that they did not form constitutions, in response to the recommendation of 
Congress of May 15, 1776, but contented themselves with the change of a few 
words or phrases in their respective charters made necessary by the expulsion 
of the Crown and the assumption of sovereignty on the part of the State, un- 
til, in 1818, the people of Connecticut formed their first constitution, and 
until 1842, when the people of Rhode Island formed their first. The example 
of Massachusetts will show that, where the charter was not retained, as was 
the case in the other colonies possessed of one upon the outbreak of the 
Revolution, the leaders of opinion in the different States nevertheless took it 
as the basis, omitting the provisions to which they objected or which were 
inapplicable, inserting others that met their desires or the needs of their con- 
stituents, while preserving the general wording with which they were familiar. 
This can be made very clear by comparing the language of the charter dealing 
with the legislative powers of the province with the corresponding section of 
the commonwealth of Massachusetts, adopted by the people thereof in 1780. 
This constitution was said at the time to be the best of the State constitutions, 
and with amendments it is still in force as the oldest of all written constitu- 
tions. This illustration was used for this purpose by one who has given much 
thought to the subject,^ and who chose it, as he said, almost at random. By 
the simple device of placing in parallel columns the provisions of the charter 
and of the constitution dealing with legislative powers, it is evident to the 

1 Brooks Adams, The Emancipation of Massachusetts, 1887, pp. 304-6. 

For interesting discussion of the relation of the charters to the constitutions, see also 
W. C. Morey, The Genesis of a Written Constitution in Annals of the American Academy, 
April, 1891, pp. 529-57; also J. H. Robinson, The Original and Derived Features of the 
Constitution, in the same periodical, October, 1890, pp. 203-243. 

Of interest in this connection is Charles Deane. The Forms in Issuing Letters-Patent 
by the Crown of England, Proceedings of the Massachusetts Historical Society, December, 
1869. 



132 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

eye as well as to the understanding that the constitution was the outgrowth of 
the charter. 

Charter Constitution 
And we doe further for vs our heires And further, full power and author- 
and succesors give and grant to the said ity are hereby given and granted to the 
Governor and the Great and Generall said General Court, from time to time 
Court or Assembly of our said province to make, ordain, and establish all man- 
or territory for the time being full ner of wholesome and reasonable orr 
Jll^ power and authority from time to time ders, laws, statutes and ordinances, di- 
to make ordaine and establish allman- rections and instructions, either with 
ner of wholsome and reasonable or- penalties or without; so as the same be 
ders lazvs statutes and ordinances di- not repugnant or contrary to this consti- 
rections and instructions either with tution, as they shall judge to be for the 
penalties or zvithout (soe the same be good and welfare of this common- 
not repugnant or contrary to the lawes wealth, and for the government and or- 
of this our realme of England) as they dering thereof, and of the subjects of 
shcill judge to be for the welfare of our the same, and for the necessary sup- 
said province or territory and for the port and defence of the government 
gouernment and ordering thereof and thereof. 
of the people inhabiting or who shall in- 
habit the same and for the necessary 
support and defence of the government 
thereof. 

The original charter was, as we have seen, that of a trading company, 
granted to certain persons, freemen of the company, with power to add to 
their members, with a general assembly or court, composed of the freemen 
originally or subsequentl}^ added, meeting some four times a year, with a 
smaller body, under the presidency of the governor or treasurer, to administer 
the afifairs of the company in accordance with the terms of the charter and 
with the rules and regulations laid dow^n by the members of the company met 
in general court or assembly. In the language of corporate law, the members 
of the company would today be called stockholders, and the court or assembly 
would be known as the meetings of the stockholders; the committee elected 
out of their membership would be termed the board of directors, and the pre- 
The Three sidiug officcr, chairman or president. In colonial experience, the members of 

Government the Company were the freemen of the colony, the smaller body the assembly, 

composed of deputies or representatives of the freemen, whether called house 
of burgesses, assembly, or general court, with a more exclusive body, the sec- 
ond chamber or upper house, in the nature of a council, composed of a re- 
stricted number of members and presided over by the governor. In the 
charter all powers, whether executive, legislative or judicial, are vested in 
the Assembly, in the smaller body and the governor; in the colony there is 
indeed a separation of functions, suggesting and ultimately resulting in the 
separation of powers into the legislative, executive and judiciary; for, al- 
though courts were established, the assembly at times, or the governor in coun- 



ESTABLISHMENT OF STATE CONSTITUTIONS 133 

cil, acted as courts of appeal, and the upper house, partaker in legislative func- 
tions, and, in association with the governor, may be considered as participat- 
ing in the executive power and the governor may be said to share in all three. 
The need, however, of an express separation and a limitation of powers 
had made itself felt, and although it is not complete in all respects, if indeed 
it can ever be so, the principle of separation and of limitation is incorporated 
in the State constitutions. In the constitution of Virginia of July 5, 1776, 
drafted before the introduction but adopted the day after the Declaration of 
Independence, it is stated immediately after the preamble that: 

The legislative, executive and judiciary departments shall be separate and 
distinct, so that neither exercise the powers properly belonging to the other.^ 

And the reason for this separation has never been more clearly stated, it is 
beheved, than in the following classic paragraph from the thirtieth article of 
the Declaration of Rights prefixed to the first and present constitution of 
the commonwealth of Massachusetts : 

In the government of this commonwealth, the legislative department shall 
never exercise the executive and judicial powers, or either of them : The 
executive shall never exercise the legislative and judicial powers, or either 
of them: The judicial shall never exercise the legislative and executive 
powers, or either of them : to the end, it may be a government of laws, and 
not of men.^ 

Therefore, according to these principles, which pervaded the States of 
America, there was to be, and in fact there was a government of each of 
the States consisting of three branches, each more or less separate and dis- 
tinct. The constitution was to be made by the representatives of the people 
met in convention for that purpose, or to be drafted by the legislature on be- yeltJd'^*^ 
half of the people, inasmuch as the sovereignty which had formerly vested in 
the Crown, the lords spiritual and temporal of Great Britain, was, by the 
Declaration of Independence, vested in the people of each of the States. But 
whether it was exercised in convention by representatives specially chosen 
to frame a constitution or by members of the legislature, the act of one or 
the other was only valid if within the scope of the agency : and convention 
and legislature were alike responsible to the people as the ultimate source of 
authority. 

The constitution was thus not a grant from above to the people below 
but a grant from the people to its agents, who apparently regarded the consti- 
tution as in the nature of a compact, in which the people as a whole con- 
tracted with each citizen, and each citizen with the whole people to observe 
its terms ; and the goverment of the body politic was regarded as created not 

1 The Constitutions of the Several Independent States of America, 1781, p. 140. 

2 Ibid., p. 14. 



the People 



134 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

merely by or with the consent of the citizens but by their direct act or by 
their authorized agents for this purpose. The organization is a social com- 
Md°a Political P^^^ ^^ ^^^ ^^ ^^^ association of the citizens forming it is concerned, and a 
Compact political compact as far as the government of the body politic is concerned. 

Because of this action on their part they are bound by the compact, although 
on this theory it is difficult to see how their descendants are to be bound. The 
act which they committed, the association which they formed and the compact 
which they believed they created are perhaps most clearly stated in the pre- 
amble to " a constitution or frame of government, agreed upon by the dele- 
gates of the people of the State of Massachusetts Bay, in convention, begun 
and held at Cambridge, on the fifth of September, 1779, and continued by ad- 
journments, to the second of March, 1780," which preamble, still prefixed to 
the constitution of that commonwealth, reads as follows: 

The end of the institution, maintenance and administration of government, 
is to secure the existence of the body-politic, to protect it, and to furnish the 
individuals who compose it, with the power of enjoying, in safety and tran- 
quillity, their natural right, and the blessings of life : And whenever these 
great objects are not obtained, the people have a right to alter the govern- 
ment, and to take measures necessary for their safety, prosperity and happi- 
ness. 

The body-politic is formed by a voluntary association of individuals; it 
is a social compact, by which the whole people covenants with each citizen, 
and each citizen with the whole people, that all shall be governed by certain 
laws for the common good. It is the duty of the people, therefore, in fram- 
ing a constitution of government, to provide for an equitable mode of making 
laws, as well as for an impartial interpretation, and a faithful execution of 
them ; that every man may, at all times, find his security in them. 

We, therefore, the people of Massachusetts, acknowledging, with grate- 
ful hearts, the goodness of the Great Legislator of the Universe, in affording 
us, in the course of his providence, an opportunity, deliberately, and peace- 
ably, without fraud, violence, or surprize, of entering into an original, ex- 
plicit, and solemn compact with each other ; and of forming a new constitu- 
tion of civil government, for ourselves and posterity ; and devoutly implor- 
ing his direction in so interesting a design, DO agree upon, ordain, and es- 
tablish, the following Declaration of Rights, and Frame of Government, as 
the Constitution of the Commonwealth of Massachusetts.^ 

The provisions of this social compact were not matters of theory with 
the good people of those days; they were principles of the constitution to be 
observed, a fact thus stated by the eighteenth article of the Declaration of 
Rights of Massachusetts : 

A frequent recurrence to the fundamental principles of the constitution, 
and a constant adherence to those of piety, justice, moderation, temperance, 
industry, and frugality, are absolutely necessary, to preserve the advantages 
of liberty, and to maintain a free government. The people ought, conse- 

1 The Constitutions of the Several Independent States, 1781, pp. 7-8. 



ESTABLISHMENT OF STATE CONSTITUTIONS " 135 

quently, to have a particular attention to all those principles, in the choice 
of their officers and representatives: And they have a right to require of 
their lawgivers and magistrates, an exact and constant observance of them, in 
the formation and execution of all laws necessary for the good administration 
of the commonwealth.^ 

The same ideas are found expressed in the Bill of Rights adopted at the 
convention held at Williamsburg, Virginia, drafted by George Mason and 
adopted June 12, 1776, within five days after the motion made by Richard 
Henry Lee, on behalf of Virginia, for the Declaration of Independence, 
and several weeks before the adoption of the Declaration, drafted by Thomas 
Jefferson, likewise of Virginia. Thus : 

Section 1. That all men are by nature equally free and independent, and 
have certain inherent rights of which, when they enter into a state of society, 
they cannot, by any compact, deprive or divest their posterity; namely, the 
enjoyment of Hfe and liberty, with the means of acquiring and possessing 
property, and pursuing and obtaining happiness and safety. 

Sec. 2. That all power is vested in, and consequently derived from, the 
people ; that magistrates are their trustees and servants, and at all times 
amenable to them. 

Sec. 3. That government is, or ought to be, instituted for the common 
benefit, protection, and security of the people, nation or community; of all 
the various modes and forms of government, that is best which is capable of 
producing the greatest degree of happiness and safety, and is most effectually 
secured against the danger of maladministration ; and that, when any govern- 
ment shall be found inadequate or contrary to these purposes, a majority of 
the community hath an indubitable, inalienable, and indefeasible right to re- 
form, alter, or abolish it, in such manner as shall be judged most conducive 
to the public weal. 

Sec. 4. That no man, or set of men, are entitled to exclusive or separate 
emoluments or privileges from the community, but in consideration of public 
services ; which, not being descendible, neither ought the offices of magistrate, 
legislator, or judge to be hereditary.^ 

In pursuance of this right to choose their form of government and to 
make it adequate to the purposes for which it was instituted, the constitutions 
were to be retained as long as they met the needs of the people, and to be 
changed whenever they failed to do so. Therefore, provisions were made 
for their amendment. Conventions were to be called for this purpose, or 
amendments were to be proposed in one session of the legislature and con- 
sidered at a subsequent session or by a larger majority in the legislature; 
for, the constitution being a compact between the people on the one hand and f p^P^^. 
each of the citizens of the State on the other, was a fundamental law. It was ^|^^^' 
not an act of the legislature, to be withdrawn or modified by the simple 
majority of a deliberative assembly, as would be the case of an ordinary 
statute. 

1 Ibid., pp. 12-13. 

2 Thorpe, Charters and Constitutions, Vol. 7, p. 3813; Poore, pp. 1908-9. 



136 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Governor's 
Signature 



Each of the thirteen States had the threefold separation of powers, and 
each had a legislative branch, which, with the exception of Pennsylvania, 
consisted of two houses. Each had a single executive, called president or 
governor, and each had a judiciary, separate and distinct from both of these 
powers, but on appeal the judicial power was in some cases exercised in con- 
junction with one or both. In colonial times the legislative power had been 
exercised in an assembly composed of two branches, and this method was 
retained, but each branch, however, was henceforth elected by the people, re- 
jecting the principle of appointment of the upper branch. In Pennsylvania, 
due apparently to the influence of Benjamin Franklin, there was but one cham- 
ber, and Vermont, being without experience, as it had not been a colony under 
the Crown nor a State under the Articles of Confederation, adopted the single 
house from Pennsylvania, and indeed its entire constitution. Each body 
could propose laws, but the approval of both was necessary to the statute, as 
was the approval of the governor. 

The colonists, like the people of England, had learned that the power that 
held the purse would control the sword, and as the lower house was elected by 
the people and the upper house in most cases appointed by the governor or 
Crown, acting for the Crown, the colonists insisted that revenue bills should 
not only originate in the lower house, but that they could not be controlled by 
the upper house, consisting of the governor and appointed members. Hav- 
ing in mind this experience, the constitutions of the States provided that 
revenue bills should originate in the lower not in the upper house, although 
some allowed them to be amended in the upper house while others withheld 
this power from the second chamber. 

Tfie law, whether it be an ordinary statute or a revenue bill, in most cases 
required the approval of the governor, which is either a deviation from the 
principle of separation or is the cooperation recognized as separate and dis- 
tinct in their nature. It was, however, appreciated that the governor might 
improperly or mistakenly withhold his approval, and that it would interfere 
with the legislature and be a detriment to this system of government if he 
were thus allowed to block the course of legislation. Therefore, a method 
was devised to overcome the deadlock between these two branches of govern- 
ment, the principle of which appears to be best stated in Article 3 of " the 
Constitution of the State of New York, established by the Convention author- 
ized and empowered for that purpose April 20, 1777 " — the 'model of pro- 
visions in other States and the source of proposals made in the Constitutional 
Convention and the direct source of the principle ultimately adopted. Thus : 



And whereas, laws inconsistent with the spirit of this constitution, or with 
the public good, may be hastily and unadvisedly passed ; be it ordained that 
the governor for the time being, the chancellor, and the judges of the supreme 



ESTABLISHilEXT OF STATE CONSTITUTIONS 137 

court, or any two of them, together with the governor, shall be, and hereby 
are, constituted a council to revise all bills about to be passed into laws by the 
legislature, and for that purpose shall assemble themselves, from time to time, 
when the legislature shall be convened ; for which, nevertheless, they shall not 
receive any salar}- or consideration, under any pretence whatever. And that 
all bills, winch have passed the senate and assembly, shall, before they become 
laws, be presented to the said council for their revisal and consideration : and 
if upon such revision and consideration, it should appear improper to the said 
council, or a majoritv- of them, that the said bill should become a law of this 
state, that they return the same, together with their objections thereto in 
writing, to the senate or house of assembly, in which so ever the same shall 
have originated, who shall enter the objections sent down by the council, at 
large, in their minutes, and proceed to reconsider the said bill. But if after 
such reconsideration, two-thirds of the said senate or house of assembly, shall, 
notwithstanding the said objections, agree to pass the same, it shall, together 
with the objections, be sent to the other branch of the legislature, where it 
shall also be reconsidered, and if approved by two-thirds of the members pres- 
ent, shall be a law. 

And in order to prevent any unnecessary delays, be^it further ordained, 
that if any bill shall not be returned by the council within ten days after it 
shall have been presented, the same shall be a law, unless the legislature shall, 
by their adjournment, render a return of the said bill within ten days im- 
practicable: in which case the bill-shall be returned on the first day of the 
meeting of the legislature, after the expiration of the said ten days.^ 

The grant of power to the legislature was contained in the constitution p^^^J.^^'^* 
and was presumed to be complete, unless restricted. If it was deemed neces- 
sar\- or expedient in the opinion of the framers of the constitution to with- 
hold power from the legislature, this was likewise done in the constitution, 
and the declarations of rights prefixed to the State constitutions are to be 
considered as limitations upon the legislative body. Therefore the .powers 
to be enjo3ed by the legislative branch of the States did not need to be enum- 
erated in specific terms as in the case of the Articles of Confederation, or in 
specific and general terms as in the case of the Constitution of the United 
States, inasmuch as all powers of the State vested in the people of the State, 
and only such powers, could be exercised by the union of the States as should • 
be granted expressly or by necessary implication. Nevertheless, the people 
of the States were so accustomed to a declaration of rights that they objected 
^to its absence from the Federal Constitution, and although no power could be 
exercised by the government thereunder unless expressly or impliedly granted, 
they insisted upon amendments to the Constitution, of which twelve were 
proposed by the first congress of the more perfect Union and ten adopted by 
the States. These amendments, presumed to express the views of the 
framers of the Constitution, were so contemporaneous with that instrument 
as to be in fact, although not in form, a declaration of rights appended in- 
stead of being prefixed to it. 

^ The Constitutions of the Several Independent States, 1781, pp. 63-4. 



138 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

PoweM'^* The executive power was vested in the governor or president, as he is 

called in some of the constitutions, and he exercised, either alone or in con- 
junction with a smaller body, the executive power of the State. He was 
the Captain-General or the Commander-in-Chief of the land and naval forces 
of the State, and his duty was to obey its laws, to secure their universal ob- 
servance, and to exercise in his discretion the rights vested in him as executive. 
He was elected, in some cases directly by the people, in others by the legis- 
lature. He appointed officers, in some cases by the advice and consent of 
the legislature or of one of the branches thereof, although in some States the 
officials, especially the judges, were elected by the legislature. The practice 
varied, and because of this variation, difficulty was experienced in hitting upon 
an acceptable method of choosing the judges in the Federal Convention; and 
because of the election of the executive, either by the people of the State or 
by the legislatures of the different States, there were differences of opinion in 
the Federal Convention difficult to reconcile because of diverse practice and a 
lack of experience in the case of the election of a president of the United 
States instead of an executive within each of the States. In the case of the 
colonies the governor was appointed by the proprietor, as in the case of the 
proprietary provinces of Maryland and of Pennsylvania, or appointed by 
the Crown, as in the colonies generally, or elected by the people, as in the 
case of Rhode Island and Connecticut, in the same manner as a Mayor in a 
Corporation in England. Because of lack of experience in the colonies as 
well as in the States, the method of selecting the president, devised by the 
framers of the Constitution, broke down within a few years after the institu- 
tion of government under the Constitution, and has been twice amended. 
p"owerf ^^^ ^^^ matter of the judiciary it is sufficient to say in this connection 

that courts were organized and existed in each of the colonies, that they were 
appointed by the proprietors in Maryland and in Pennsylvania, that they 
were appointed by the Crown generally to serve during the pleasure of the 
Crown, although there was a determined attempt on the part of the colonies 
to have them hold office during good behavior, as in the case of the English 
judges, appointed after and in pursuance of the Bill of Rights of 1689, or 
they were appointed or elected by the colonial authorities, as in the case of 
Connecticut and Rhode Island. The final court of appeal was during the 
colonial period the King in Council, just as the laws of the colonies, with 
the exception of Connecticut and Rhode Island, were subject to veto under 
prescribed conditions, by the King in Council. 

Under the constitutions of the States there was, as has been stated a judici- 
ary, whose judges were ordinarily elected by the legislature, or, as in the case 
of Massachusetts, appointed by the governor with the advice and consent 



ESTABLISHMENT OF STATE CONSTITUTIONS 139 

of the Senate, and, because of colonial experience, they held office during 
good behavior. 

There were inferior courts, such as those presided over by justices of 
the peace; there were county courts, there were superior courts, there were 
courts of appeal, and there were courts of chancery, in most although not in 
all, and appeal lay from the lower to the higher courts. The Senate of New 
York was the ultimate court of appeal, following the English practice in 
which the House of Lords decides in final resort; the governor and three 
members of each house forming the court of appeals in Delaware and in- 
vested with the jurisdiction of the King in Council. Whether the officer was 
a legislator, executive or judge, he was responsible to some higher authority 
according to the principles of the constitutions, subject to impeachment by 
the legislature and, after trial either by the lower house or separate tribunal, 
removable from office. The governments under the constitutions were to 
be governments of law, not of men, in a larger and a more perfect sense 
than under the charters. The law was the constitution, to be observed by all 
and to be administered by agents, chosen directly or indirectly by the peo- 
ple of each of the States possessing the right of suffrage, which in most cases 
was limited, not universal. This law was indeed subject to amendment, but 
until amended it was binding upon the people who created it and the officials 
chosen to administer and to observe its provisions. The law of the consti- 
tution was superior to the act of the legislature, inasmuch as the creature of 
the moment was regarded as inferior to the provisions of the constitution in 
accordance with which the legislature was created and adopted. The consti- 
tution itself was in a more restricted sense the creature of the moment and 
was itself inferior to the creator of all political power. 

It was to be expected that the States would, in the matter of a constitution ^ 
for their union, consider themselves as the source of law, that the instrument 
of government for the union would prescribe in explicit terms that law, 
whereof the people of the States were the source and the origin, that it would 
derive its power from the people of the States, either in convention created 
for that purpose or by legislatures of the States representing the people 
thereof, and that the form of government for the States would be based 
upon the form of government drafted by the States themselves. It was 
further to be expected that sovereign powers would be transferred from the 
States and conferred upon the government of the union for the common bene- 
fit of the States ; that in all other cases the States would reserve to themselves 
the sovereign powers which they should consider necessary for their local 
interests and concerns, and that if this distribution of sovereign powers did 
not seem to safeguard sufficiently their local rights and interests and con- 



140 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

cerns, they would insist upon its amendment ; for both by the State constitu- 
tions and by the Declaration of Independence of the United States, govern- 
ment derives its just powers from the consent of the governed. 

As Mr. Justice Matthews has finely, truly, and impressively said in deliver- 
ing the opinion of the Supreme Court in Yick Wo v. Hopkins (118 U. S., 
356, 369), decided in 1886: 

When we consider the nature and theory of our institutions of govern- 
ment, the principles upon which they are supposed to rest, and review the 
history of their development, we are constrained to conclude that they do not 
mean to leave room for the play and action of purely personal and arbitrary 
power. Sovereignty itself, is, of course, not subject to law, for it is the au- 
thor and source of law ; but in our system, while sovereign powers are dele- 
gated to the agencies of government, sovereignty itself remains with the 
people, by whom and for whom all government exists and acts. And the law 
is the definition and limitation of power. It is, indeed, quite true, that there 
must always be lodged somewhere, and in some person or body, the authority 
of final decision ; and in many cases of mere administration the responsibility 
is purely political, no appeal lying except to the ultimate tribunal of the 
public judgment, exercised either in the pressure of opinion or by means of 
the suffrage. But the fundamental rights to life, liberty, and the pursuit of 
happiness, considered as individual possessions, are secured by those maxims 
of constitutional law which are the monuments showing the victorious 
progress of the race in securing to men the blessings of civilization under the 
reign of just and equal laws, so that, in the famous language of the Massa- 
chusetts Bill of Rights, the government of the Commonwealth " may be a 
government of laws and not of men." For the very idea that one man may be 
compelled to hold his life, or the means of living, or any material right es- 
sential to the enjoyment of life, at the mere will of another, seems to be in- 
tolerable in any country where freedom prevails, as being the essence of 
slavery itself. 



VII 

THE FEDERAL CONVENTION: AN INTERNATIONAL 
CONFERENCE 

Philad^ Oct. 22 — 1787. 
I send you enclos'd the propos'd new Federal Constitution for these States. I was 
engag'd 4 Months of the last Summer in the Convention that form'd it. It is now sent 
by Congress to the several States for their Confirmation. If it succeeds, I do not see 
why you might not in Europe carry the Project of good Henry the 4th into Execution, by 
forming a Federal Union and One Grand Republick of all its different States & Kingdoms; by 
means of a like Convention; for we had many Interests to reconcile. (Extract from letter 
of Benjamin Franklin to Ferdinand Grand, Documentary History, Vol. IV, pp. 341-342.) 

There is no difficulty in defining a state or nation. It is a body pi|itic, a political com- 
munity, formed by the people within certain boundaries : who, being separated from all 
others, adopt certain rules for their own government, with which no people without their 
limits can interfere. The power of each terminates at the line of separation : each is neces- 
sarily supreme within its own limits: of consequence, neither can have any jurisdiction within 
the limits of another, without its consent. The name given to such community, whether state, 
nation, power, people, or Commonwealth, is only to denote its locality, as a self-governing body 
of men united for their own internal purposes, if two or more think proper to unite for com- 
mon purposes, and to authorize the exertion of any power over themselves, by a body com- 
posed of delegates or ambassadors of each, they confederate. Each has the undoubted right 
of deciding, what portion of its own power, it will authorize to be exerted in a meeting, as- 
sembly, or congress, of all; what it will restrain, prohibit, or qualify. If this can be done by 
common consent, the terms of their union are defined, and according to their nature, they 
form a mere confederacy of states, or a federal government; the purposes and powers 
of which depend on the instrument agreed upon. If they cannot agree, then each state 
instructs its delegates according to its own will, and sends them to the body in which all 
the states are assembled by their deputies : each state is considered as present, and its 
will expressed by the vote of its delegates. The congress of states are left, in such 
case, to perform such duties as are enjoined, and execute such powers as are given to 
them, by their respective and varying instructions; the extent of which is testified in the 
credentials of the separate delegations, as before the confederation of 1781. {Mr. Justice 
Baldzvin, A General Viciv of the Origin and Nature of the Constitution and Government of 
the United States, 1837, p. 16.) 

His Excellency Thomas Collins, Esquire, President, Captain General, and 

Commander in Chief of the Delaware State; To all to whom these Presents 

(Seal) shall come. Greeting. Know Ye, that among the Laws of the said State, passed 

by the General Assembly of the same, on the third day of February, in the Year 

of our Lord One thousand seven hundred and Eighty seven, it is thus inrolled. 

In the Eleventh Year of the Independence of the Delaware State 

An Act appointing Deputies from this State to the Convention proposed to be held in the 
City of Philadelphia for the Purpose of revising the Federal Constitution. 

Whereas the General Assembly of this State are fully convinced of the Necessity of 
revising the Federal Coiistitution, and adding thereto such further Provisions, as may render 
the same more adequate to the Exigencies of the Union ; And Whereas the Legislature 
of Virginia have already passed an Act of that Commonwealth, appointing and authorizing 
certain Commissioners to meet, at the City of Philadelphia, in May next, a Convention of 
Commissioners or Deputies from the different States : And this State being willing and 
desirous of co-operating with the Commonwealth of Virginia, and the other States in the 
Confederation, in so useful a design. 

Be it therefore enacted by the General Assembly of Delaware, that George Read, Gunning 
Bedford, John Dickinson, Robert Bassett and Jacob Broom, Esquires, are hereby appointed 
Deputies from this State to meet in the Convention of the Deputies of other States, to 
be held at the City of Philadelphia on the Second day of JNIay next : And the said 
George Read, Gunning Bedford, John Dickinson, Richard Bassett and Jacob Broom, Esquires, 
or any three of them, are hereby constituted and appointed Deputies from this State, 

141 



142 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

with Powers to meet such Deputies as may be appointed and authorized by the other States 
to assemble in the said Convention at the City aforesaid, and to join with them in devising, 
deHberating on, and discussing, such Alterations and further Provisions as may be neces- 
sary to render the Foederal Constitution adequate to the Exigencies of the Union; and in 
reporting such Act or Acts for that purpose to the United States in Congress Assembled, 
as when agreed to by them, and duly confirmed by the several States, may effectually pro- 
vide for the same : So always and Provided, that such Alterations or further Provisions, 
or any of them, do not extend to that part of the Fifth Article of the Confederation of 
the said States, finally ratified on the first day of March, in the Year One thousand seven 
hundred and eighty one, which declares that " In determining Questions in the United 
States in Congress Assembled each State shall have one Vote." 

And be it enacted, that in Case any of the said Deputies hereby nominated, shall happen 
to die, or to resign his or their Appointment, the President or Commander in Chief with 
the Advice of the Pri\'y Council, in the Recess of the General Assembly, is hereby au- 
thorized to supply such Vacancies 

} Signed by Order of the House of Assembly, 

John Cook, Speaker 
Si.smed by Order of the Council 
Geo Craghead, Speaker. 

All and singular which Premises by the Tenor of these Presents, I have caused to be 
Exemplified. In Testimony whereof I have hereunto subscribed my Name, and caused the 
Creat-Seal of the said State to be afifixed to these Presents, at New Castle the Second 
day of April in the Year of our Lord One thousand seven hundred and eighty seven, 
and in the Eleventh Year of the Independence of the United States of America 

Thqs Collins 
Attest 
Ja Booth, Sec''. 

(Instructions of Delazvare State to its Delegates in the Philadelphia Federal Convention 
of 1787, Documentary History of the United States, 1786-1870, Vol. I, 1894, pp. 23-2 5.) 

Department of State, 
Washington, April 18, 1899. 

Gentlemen : You have been appointed by the President to constitute a commission to 
represent him at an international conference called by His Imperial Majesty the Emperor 
of Russia to meet at The Hague, at a time to be indicated by the Government of the 
Netherlands, for the purpose of discussing the most efficacious means of assuring to all 
peoples the " benefits of a real and durable peace." 

Upon your arrival at The Hague you will effect an organization of your commission, 
whose records will be kept by your secretary, Hon. Frederick W. Holls. All reports and 
communications will be made through this Department, according to its customary forms, 
for preservation in the archives. 

The programme of topics suggested by the Russian minister of foreign affairs for 
discussion at the conference in his circular of December 30, 1898, is as follows : . . . 

I am, etc., 

John Hay. 

(Instructidns to the American Delegates at the First Hague Peace Conference, 1899, 
Papers Relating to the Foreign Relations of the United States, 1899, pp. 511, 513.) 

Department of State, 
Washington, May 31, 1907. 

Gentlemen: You have been appointed delegates plenipotentiary to represent the United 
States at a Second Peace Conference which is to meet at The Hague on the ISth of June, 
1907. ... 

Following the precedent established by the commission to the First Conference, all your 
reports and communications to this Government will be made to the Department of State 
for proper consideration and eventual preservation in the archives. The records of your 
commission will be kept by your secretary, Mr. Chandler Hale. Should you be in doubt 
at any time regarding the meaning or effect of these instructions, or should you con- 
sider at any time that there is occasion for special instructions, you will communicate 
freely with the Department of State by telegraph. It is the President's earnest wish 
that you may contribute materially to the effective work of the conference and that its 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 143 

deliberations may result in making international justice more certain and international peace 
more secure. 

I am, gentlemen, your obedient servant, 

Elihu Root. 

(Instructions to the American Delegates of the United States to the Hague Peace Con- 
ference of 1907, Foreign Relations of the United States. 1907, part 2, pp. 1128, 1139.) 

M"". King objected to one of the rules in the Report authorising any member to call for 
the yeas & nays and have them entered on the minutes. He urged that as the acts of the 
Convention wore not to bind the Constituents it was unnecessary to exhibit this evidence of 
the votes ; and improper as changes of opinion would be frequent in the course of the busi- 
ness & would fill the minutes with contradictions. ... 

The proposed rule was rejected nem. contradicenle. (Madison's Notes of Debates in 
the Federal Convention. Session of Monday, May 28, 1787, Documentary History of the 
Constitution of the United States of America, 1786-1870, Vol. HI, 1900, pp. 10-12.) 

As is the rule in plenary sessions, each State shall have only one vote in each Commission. 
{Rule of the First Hague Peace Conference. Conference internationale de la paix. La 
Haye 18 mai-2g juillet 1899, proces-verbaux, part i, p. 14.) 

Each delegation has a right to only one vote. 

The vote is taken bv roll call according to the alphabetical order of the Powers repre- 
sented. (Regulations of the Second Hague Peace Conference, Deuxieme conference inter- 
nationale de la paix, La Haye 15 jnin-18 octobre 1907. Actes et documents, p. 56.) 

The Ratification of the Conventions of nine States, shall be sufficient for the Establish- 
ment of this Constitution between the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States present the Seventeenth 
Day of September in the Year of our Lord one thousand seven hundred and Eighty seven, 
and of the Independence of the United States of America the Twelfth. In Witness whereof 
We have hereunto subscribed our Names. (The Constitution of the United States, Article 
VU.) 

Article 52. The present Convention shall be ratified and the ratifications shall be de- 
posited at The Hague as soon as all the Powers mentioned in Article 15 and in the table 
annexed are in a position to do so. 

The deposit of the ratifications shall take place, in any case, on the 30th June, 1909, 
if the Powers which are ready to ratify furnish nine judges and nine deputy judges to 
the Court, qualified to ^•alidly constitute a Court. If not, the deposit shall be postponed 
until this condition is fulfilled. . . . 

Article 54. The present Convention shall come into force six months from the deposit 
of the ratifications contemplated in Article 52, paragraphs 1 and 2. . . . (Convention No. XII 
relating to the creation of an International Prize Court, October 18, 1907, adopted by 
the Second Hague Peace Conference.) 

Two requisites seem necessary to constitute a Federal Government in this its most 
perfect form. On the one hand, each of the members of the Union must be wholly inde- 
pendent in those matters which concern each member only. On the otlier hand, all must 
be subject to a common power in those matters which concern the whole body of members 
collectively. Thus each member will fix for itself the laws of its criminal jurisprudence, 
and even the details of its political constitution. And it will do this, not as a matter of 
privilege or concession from any higher power, but as a matter of absolute right, by virtue 
of its inherent powers as an independent commonwealth. But in all matters which concern 
the general body, the sovereignty of the several members will cease. Each member is 
perfectly independent within its own sphere ; but there is another sphere in which its in- 
dependence, or rather its separate existence, vanishes. It is invested with every right of 
sovereignty on one class of subjects, but there is another class of subjects on which it is 
as incapable of separate political action as any province or city of a monarchy or of an 
indivisible republic. The making of peace and war, the sending and receiving of am- 
bassadors, generally all that comes within the department of International Law, will be 
reserved wholly to Hie central power. Indeed, the very existence of the several members 
of the Union will be diplomatically unknown to foreign nations, which will never be called 
upon to deal with any power except the Central Government. A Federal Union, in short, 
will form one State in relation to other powers, but many States as regards its internal 



144 THE UIsITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

administration. This complete division of sovereignty we may look upon as essential to the 
absolute perfection of the Federal ideal. {Edward A. Freeman, History of Federal Govern- 
ment, from the foundation of the Achaian League to the disruption of the United States 
Vol. I, 1863, pp. 3-4.) 

The distribution of powers is an essential feature of federalism. The object for which 
a federal state is formed involves a division of authority between the national government 
and the separate States. The powers given to the nation form in effect so many limitations 
upon the authoritj' of the separate States, and as it is not intended that the central govern- 
ment should have the opportunity of encroaching upon the rights retained by the States, 
its sphere of action necessarily becomes the object of rigorous definition. The Constitution! 
for instance, of the United States delegates special and closely defined powers to the 
executive, to the legislature, and to the judiciary of the Union, or in effect to the Union 
itself, whilst it provides that the powers "not delegated to the United States by the Con- 
stitution nor prohibited by it to the States are reserved to the States respectively or to the 
people." 

This is all the amount of division which is essential to a federal constitution. But the 
principle of definiton and limitation of powers harmonises so well with the federal spirit 
that it is generally carried much farther than is dictated by the mere logic of the constitution. 
Thus the authority assigned to the United States under the Constitution is not concentrated 
in any single official or body of officials. The President has definite rights, upon which 
neither Congress nor the judicial department can encroach. Congress has but a limited, 
indeed a very limited, power of legislation, for it can make laws upon eighteen topics only; 
yet within its own sphere it is independent both of the President and of the Federal Courts. 
So, lastly, the judiciary have their own powers. They stand on a level both with the 
President and with Congress, and their authoritv, (being directly derived from the coii- 
stitution) cannot, without a distinct violation of law, be trenched upon either by the execu- 
tive or by the legislature. {Albert Venn Dicey. Introduction to the Study of the Laur 
of the Constitution, 1883, 8th edition, 1915, pp. 147-149.) 

It is impossible to imagine liberty in its fulness, if the people as a totality, the country, the 
nation, whatever name may be preferred, or its government, is not independent on foreign 
interference. The country must have what the Greeks called autonomy. This implies, that 
the country must have the right, and, of course, the power, of establishing that government 
which it considers best, without interference from without or pressure from above. No 
foreigner must dictate; no extra-governmental principle, no divine right or " principle of 
legitimacy" must act in the choice and foundation of the government; no claim superior 
to that of the people's, that is, national sovereignty must be allowed. This independence 
or national self-government farther implies that, the civil government of free choice or 
free acquiescence being established, no influence from without, besides that of freely acknowl- 
edged justice, fairness, and morality, must be admitted. There must then be the requisite 
strength to resist when necessary. (Francis Lieber, On Civil Liberty and Self-Govemment, 
1853, Vol. I, p. 73-) 

The tendency plainly is towards a more centralized government by a freer interpretation 
of the United States Constitution. The dangers which menace us from this tendencj', and 
from what may be called democratic abstraction, are met by such a book as this, which 
teaches that there is no safe liberty but one under checks and guarantees, one which is 
articulated, one which by institutions of local self-government educates the whole people 
and moderates the force of administrations, one which sets up the check of state power 
within certain well-defined limits against United States power, one which draws a broad 
line between the unorganized masses of men calling themselves the people and the people 
formed into bodies, "joined together and compacted" by constitutions and institutions. 
{Theodore D. IVoolsey, Introduction to Third Edition of Francis Lieber, On Civil Liberty 
and Self -Government, 1874, p. 10.) 

We know no reason in the nature of things why a state should be any the better for 
being large, and because throughout the greater part of history very large states have usually 
heen states of a low type. (Sir John Robert Seeley, Expansion of England, 1883, American 
edition, p. 294.) 



CHAPTER VII 

THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 

It was foreseen, as has already been pointed out, that amendments to the 
Articles of Confederation would need to be made, inasmuch as the Union, of 
which the Articles formed the instrument of government, was to be perpetual, 
and no instrument could, even in the opinion of its framers, be looked upon as 
so perfect as not to be susceptible of modifications under changing conditions. 
The Articles were, as a matter of fact, defective, or were thought to be so by 
large bodies of people in all the States. At any rate, their provisions were not 
observed, and it was apparent that modifications would have to be made in the 
framework of government even if it were possible to preserve the Articles as 
thus amended. " Every state " was, to quote the language of Article 13, to 
" abide by the determinations of the united states in congress assembled, on all 
questions which by this confederation are submitted to them." ^ This unfor- 
tunately was not done. It was next provided that the Articles of Confedera- 
tion should " be inviolably observed by every state," that the union should be 
perpetual, and that no alteration should " at any time hereafter be made in any 
of them ; unless such alteration be agreed to in a congress of the united states, 
and be afterwards confirmed by the legislatures of every state." 

The requirement of unanimity, natural enough and indeed proper in a ^/commerce 
diplomatic document, and to be understood unless there be a stipulation to a"<J Navigation 
the contrary, rendered an amendment of the Articles very difficult, as the ex- 
perience of well nigh ten years had amply shown, and yet the consent of all 
must be had to a change affecting all, if that change were to take place and 
become effective. Without recounting the steps taken to invigorate the gov- 
ernment, whose outward weakness was more apparent than its inner strength, 
it is sufficient to recall that Virginia, under the wise direction of Madison, 
took advantage of the meeting of delegates of that State and of Maryland 
concerning the freedom of navigation of the Potomac and of the Chesapeake 
to call a conference of all the States for this purpose, to meet at Annapolis 
the first Monday in September, 1786. 

An agreement about commerce and navigation would have been a mere 
patch upon the Articles, which would otherwise remain as they were. The 
crying need of the Confederation was such a modification of the Articles as 

''■The Constitutions of the Several Independent States, 1781, pp. 201-2. 

I4S 



146 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

would vest the general government with power to regulate commerce and 
navigation, and by means thereof or by other means to acquire a revenue for 
the purposes of government. A revision limited to a part of the field might 
have enabled the Confederation to continue as thus modified vmtil a more fav- 
orable occasion should present itself for a revision of the scheme of govern- 
ment as a whole. 

Of the thirteen States invited, nine accepted the invitation and appointed 
delegates, but of the nine only the delegates of five arrived, and the representa- 
tives of Virginia, Maryland, New Jersey, Delaware and New York properly 
concluded that it would serve no useful purpose to draft a plan to be accepted 
by all when only five of the States were sufficiently interested to have their 
delegates take part in the convention. Therefore they wisely limited their 
report presented to the States and likewise to the Congress, to a statement 
of the needs of revision, and they recommended a conference of delegates 
of all the States, to meet in Philadelphia the second Monday of May in 1787, 
" to take into consideration the situation of the United States, to devise such 
further provisions as shall appear to them necessary to render the constitution 
of the Federal Government adequate to the exigencies of the Union; and to 
report such an act for that purpose to the United States in Congress as- 
sembled, as, when agreed to by them, and afterward confirmed by the Legis- 
latures of every State, will effectually provide for the same." ^ 

As the initiative came from the States, it was natural that those States 
most interested in the revision of the Articles should take action, even before 
the Congress should recommend the States so to do. It was perhaps necessary 
to do this in order that the Congress should see the advisability of action on 
its part, lest it might seem to be forced to move, and thus to lose the credit 
of directing what its members could not seemingly prevent. Therefore, after 
the State of Virginia (October 16, 1786), the State of New Jersey (Novem- 
ber 23, 1786), the State of Pennsylvania (December 30, 1786), the State of 
North Carolina (January 6, 1787), the State of New Hampshire (January 17, 
1787), the State of Delaware (February 3, 1787), and the State of Georgia 
(February 10, 1787) had complied with the recommendation of the An- 
napolis Convention and had appointed their delegates to the meeting in Phila- 
delphia, the Congress, on February 21, 1787, passed the following resolution: 

Whereas there is provision in the Articles of Confederation & perpetual 
Union for making alterations therein by the Assent of a Congress of the 
United States and of the legislatures of the several States ; And whereas ex- 
perience hath evinced that there are defects in the present Confederation, as 
a mean to remedy which several of the States and particularly the State of 
New York by express instructions to their delegates in Congress have sug- 
gested a convention for the purposes expressed in the following resolution and 

1 Elliot's Debates, Vol. i, p. 118. 



May, 



THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 147 

such Convention appearing to be the most probable mean of estabHshing in 
these states a firm national government. 

Resolved that in the opinion of Congress it is expedient that on the second 
Monday in May next a Convention of delegates who shall have been ap- 
pointed by the several states be held at Philadelphia for the sole and express 
purpose of revising the Articles of Confederation and reporting to Con- 
gress and the several legislatures such alterations and provisions therein as 
shall when agreed to in Congress and confirmed by the states render the fed- 
eral constitution adequate to the exigencies of Government & the preserva- 
tion of the Union. ^ 

In consequence of this action of the Congress, the State of New York 
(February 28, 1787), the State of South Carolina (March 8, 1787), the 
State of Massachusetts (April 9, 1787), the State of Connecticut (May 2, 
1787), and the State of Maryland (May 26, 1787) acted favorably upon the 
recommendation and appointed delegates to the conference of the States in ''^' 
Philadelphia, thus accounting for all the States w^ith the exception of the State 
of Rhode Island, which, in its sovereign pleasure, or perhaps it may be more 
accurate to say, displeasure, refused to cast its lot with its sister States, al- 
though the better elements of the State, if their own testimony is to be taken, 
had attempted to line up the little Commonwealth with its equals, if not its 
betters. 

The second Monday of May came, but the delegates did not. On the 14th 
day of the month, the Virginian delegation, with George Washington at its 
head, arrived at Philadelphia on time, where they were met by the Pennsyl- 
vanian delegates, who would have found it difficult to be elsewhere. A ma- 
jority of the States was obtained for the first time on May 25, 1787. On that 
day the conference held the first of its sessions, which was not to revise the 
Articles of Confederation and to make them adequate for the purposes of 
union, but to create a more perfect Union, the model, as many think, of or- 
ganization for the society of nations. 

In the interval between these two periods the Virginian delegation met 
some two or three hours a day to consider the questions to come before the 
convention and to put their views in the form of resolutions which might 
serve, in the absence of others better, as a basis of discussion and of the future 
instrument of government. They also met and exchanged views with the dele- 
gates of the other States as they arrived, and especially, it would seem, entered 
into friendly and confidential relations w^ith the Pennsylvanian members. An 
incident which happened before the opening of the conference is recorded by 
Mr. Madison, a member of the Virginian delegation destined to be the re- 
porter of the conference and to be regarded as the father of the Constitution, 
just as General Washington, another Virginian delegate, was and is the father 
of the country. Interesting in itself, the incident has a permanent value in 

1 Documentary History of the Constitution of the United States of America, Vol. iv, p. 
78. 



148 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Organization 
of the Federal 
Convention 



that it shows the attitude of some of the delegates of the larger States which, 
it is believed, was shared consciously or unconsciously by that class of repre- 
sentatives. It also discloses their attitude in advance and explains their pur- 
pose in the course of proceedings. 

It appears that Gouverneur Morris, with the support of Robert Morris 
and of others from Pennsylvania, opposed " as unreasonable " the concession 
of an equal vote to the little States, on the ground that, armed with equality, 
the delegates of the smaller States would be enabled " to negative every good 
system of government " which the delegates of the larger States might pro- 
pose, which, in the opinion of such delegates " must in the nature of things be 
founded on a violation of that equality." The Virginian delegates, however, 
forecast the consequences of such action on the part of the larger States at 
the opening of the convention, as likely to " beget fatal altercations between the 
large and small States." They felt that the attempt if made at this time 
would fail, whereas the smaller States might, in the course of debate, be 
prevailed upon " to give up their equality for the sake cf an effective govern- 
ment." They therefore, to quote James Madison's account of the incident, 
" discountenanced and stifled the project." ^ 

It is, however, important to bear this incident in mind, as it shows the 
atmosphere of the convention, overcast before its opening and soon to be 
charged with electricity. The opposition between the large and the small ap- 
pears to be inherent in the nature of things and to come to the surface during 
the proceedings of an international conference. The little States insist upon 
equality of representation, and upon their equality of right to present their 
views and to have them debated, even although if treated with courtesy and 
kindly consideration they are disposed to adopt the projects of the larger 
States if convinced that they are meant for the good of the whole. 

, On the 25th of May the delegates of seven States, being a majority of the 
original thirteen which had declared their independence of the mother country 
on July 4, 1776, and whose independence was recognized by the mother country 
on September 7, 1783, had arrived, and on that day they proceeded to the hall 
in which that independence had been proclaimed and, in conference, to hit 
upon a plan for its maintenance, collectively as well as individually. As is the 
wont of international conferences, the leading member of the State in which 
the conference was held opened proceedings. In the place of Benjamin Frank- 
lin, President of Pennsylvania, unavoidably absent, Robert Morris, a dele- 
gate from that State, to quote Mr. Madison's Notes, " informed the mem- 
bers assembled that by the instruction & in behalf of the deputation of Pen^ 
he proposed George Washington, Esq''., late Commander in chief for presi« 

^Madison Papers, Gilpin ed., 1841, Vol. ii, p. 726 note. 



Conference 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 149 

dent of the Convention." ^ As is also the wont of international conferences, inleniationai 
the delegate of another and a leading State seconded the nomination. In 
this instance it was John Rutledge of South Carolina who expressed, as is 
ordinarily done on such occasions, his confidence that the choice would be 
unanimous, observing with greater truth than is customary, " that the presence 
of Gen'. Washington forbade any observations on the occasion which might 
otherwise be proper." ^ On this transaction Mr. Madison makes the proper 
comment that " the nomination came with particular grace from Penna, as 
Doc"". Franklin alone could have been thought of as a competitor. The Doc'', 
was himself to have made the nomination of General Washington, but the 
state of the weather and of his health confined him to his house." ^ And it 
may be said in this connection that Washington and Franklin were, by their 
respective achievements, the two great personalities in the convention, in 
which, according to the account of a contemporary, they moved with great 
caution and circumspection. 

As is not the wont, however, of international conferences, the election was 
by ballot, which, in the case of Washington, could only result in a unanimous 
election, after which he was conducted to the chair by Messrs. Morris and 
Rutledge. Thereupon, " in a very emphatic manner," to quote Mr. Madison, 
" he thanked the Convention for the honor they had conferred on him, re- 
minded them of the novelty of the scene of business in which he was to act, 
lamented his want of better qualifications, and claimed the indulgence of the 
House towards the involuntary errors which his inexperience might oc- 
casion." * This language is also the language of international conferences, 
but it was invariably Washington's attitude toward himself in private, and in 
public, on the three great occasions in which he appeared before his country- 
men, here, on accepting the chief command of the American armies, and on 
being proposed and elected President of the United States. 

As was also the wont of international conferences, a delegate from Penn-j 
sylvania, in this instance James Wilson, proposed the appointment of a secre- 
tary and nominated William Temple Franklin, whose selection would have 
been agreeable to the authorities of Pennsylvania, inasmuch as he was the 
grandson of its venerable chief executive. But as the nomination was made 
in a conference of the American States, accustomed to think and to act for 
themselves and to choose those whom they really wanted, not those who were 
imposed upon them, Mr. Franklin's nomination did not result in an election. 
" Colonel," as Mr. Madison calls him, but as we should say today, Alexander 

^Documentary History of the Constitution, Vol. iii, p. 8. 

2 Ibid. 

3 Ibid., p. 9. 
* Ibid., pp. &-9. 



150 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Hamilton, nominated Major Jackson, and upon ballot the major had five votes 
to the grandson's two. 

The convention had a president and a secretary ; it did not as yet have 
members. The credentials of those appointed by the States were presented 
and read, whereupon the deputies ther^ assembled constituted the conference. 
As the members acted under instructions from their States, in accordance 
with the custom of international assemblies, it is desirable to give some at- 
tention to the form and content of their credentials. First of Virginia, to 
follow the order of the States accepting the recommendation of the Annapolis 
Convention, subsequently approved by the Congress. 
Instructions The purposc is stated and the delegates are instructed " to meet such Depu- 

Deiegates ties as may be appointed and authorized by other States to assemble in Con- 

vention at Philadelphia . . . and to join with them in devising and discussing 
all such Alterations and farther Provisions as may be necessary to render the 
Foederal Constitution adequate to the Exigencies of the Union and in report- 
ing such an Act for that purpose to the United States in Congress as when 
agreed to by them and duly confirmed by the several States will effectually pro- 
vide for the same." ^ 

The Pennsylvania delegates were constituted and appointed " with Powers 
to meet such Deputies as may be appointed and authorized by the other States 
. . . and to join with them in devising, deliberating on, and discussing, all 
such alterations and further Provisions, as may be necessary to render the 
foederal Constitution fully adequate to the exigencies of the Union." ^ 

The State of North Carolina authorized its deputies " to meet and confer 
with such Deputies as may be appointed by the other States for similar pur- 
poses, and with them to discuss and decide upon the most effectual means to 
remove the defects of our Foederal Union, and to procure the enlarged Pur- 
poses which it was intended to effect, and that they report such an Act to the 
General Assembly of this State, as when agreed to by them, will effectually 
provide for the same." ^ 

The delegates of New Hampshire were appointed and authorized " to dis- 
cuss and decide upon the most effectual means to remedy the defects of our 
federal Union." * 

The instructions to the delegates of Delaware contained a clause which 
showed the intention of that little commonwealth to maintain not only the 
independence but the equality which it had gained for itself, in conjunction 
with the other States, through a conflict of seven years. Thus, the deputies 
of the smallest of the States attending the Convention, — for Rhode Island, 

^ DocumentavM History, Vol. i, p. 28. 

2 Ibid., p. 20. ■ 

3 Ibid., p. 35. 
* Ibid., p. 10. 



THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 151 

as previously stated, failed to appear, — were appointed and authorized to 
meet the deputies appointed and authorized by, the other States, " and to join 
with them in devising, deliberating on, and discussing, such Alterations and 
further Provisions as may be necessary to render the Foederal Constitution 
adequate to the Exigencies of the Union. . . : So always and Provided, that 
such Alterations or further Provisions, or any of them, do not extend to that 
part of the Fifth Article of the Confederation of the said States, finally rati- 
fied on the first day of March, in the Year One thousand seven hundred and 
eighty one, which declares that ' In determining Questions in the United 
States in Congress Assembled each State shall have one vote.' " ^ 

The reason for this action on behalf of Delaware is clearly stated in a letter 
dated New Castle, January 17, 1787, from George Read, soon to be head of 
the Delaware delegation, to John Dickinson, soon to be its leading member, 
as he already was a leading citizen of the United States, from which the fol- 
lowing passages are quoted by way of comment : 

Finding jtliat Virginia hath again taken the lead in the proposed conven- 
tion at Philadelphia in May, as recommended in our report when at An- 
napolis, ... it occurred to me, as a prudent measure on the part of our 
State, that its Legislature should, in the act of appointment, so far restrain 
the powers of the commissioners, whom they shall name on this service, as 
that they may not extend to any alteration in that part of the fifth article of 
the present Confederatibn, . . . that is, that such clause shall be preserved or 
inserted, for the like purpose, in any revision that shall be made and agreed 
to in the proposed convention.^ 

The reason for this suggestion, inuring to the benefit of the small States 
generally as well as to Delaware, and which John Dickinson, perhaps more 
than any other man, made a reality, is thus stated by Mr. Read, who, curiously 
enough, in the Convention went over to the larger States : 

I conceive our existence as a State will depend upon our preserving such 
rights, for I consider the acts of Congress hitherto, as to the ungranted lands 
in most of the larger States, as sacrificing the just claims of the smaller and 
bounded States to a proportional share therein, for the purpose of discharg- 
ing the national debt incurred during the war; and such is my jealousy of 
most of the larger States, that I would trust nothing to their candor, gen- 
erosity, or ideas of public justice in behalf of this State, from what has here- 
tofore happened, and which, I presume, hath not escaped your notice. . . . 
Persuaded I am, from what I have seen occasionally in the public prints and 
heard in private conversations, that the voice of the States will be one of 
the subjects of revision, and in a meeting where there will be so great an 
interested majority, I suspect the argument or oratory of the smaller State 
commissioners will avail little. In such circumstances I conceive it will 
' relieve the commissioners of the State from disagreeable arg^tmentation, as 
well as prevent the downfall of the State, which would at once become a 

^ Farrand, Records of the Federal Convention, Vol. iii. p. 575. 

- W. T. Read, Life and Correspondence of George Read, pp. 43S-9. 



152 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

cypher in the union, and have no chance of an accession of district, or even 
citizens. . . . 

The clause in the instructions to the Delaware delegates, inserted upon the 
suggestion of Mr. Read, was not lost upon the delegates in the convention, as 
appears from the testimony of Mr. Madison, who says in his Notes that " on 
reading the credentials of the deputies it was noticed that those from Dela- 
ware were prohibited from changing the Article in the Confederation establish- 
ing an equality of votes among the States." ^ This was the cloud no larger 
than a man's hand which portended approaching storm. 

The instructions to the delegates from Georgia contained the usual author- 
ization, with, however, the statement following the date of the year "of our 
Sovereignty and Independence the Eleventh." ^ And the instructions of New 
York were similar, omitting the " year of our Lord " and substituting " this 
Ninth day of May in the Eleventh Year of the Independence of the said 
State." 3 

The instructions from the State of South Carolina did not differ materially 
from those of the other States, except that the delegates were to " join with 
such Deputies or Commissioners (they being duly authorized and empowered) 
in devising and discussing all such Alterations, Clauses, Articles and Pro- 
visions, as may be thought necessary to render the Foederal Constitution en- 
tirely adequate to the actual Situation and future good Government of the 
confederated States." * 

The Commonwealth of Massachusetts contented itself in its instructions 
with quoting the resolution of Congress and authorizing its representatives 
" to meet such Delegates as may be appointed by the other or any of the other 
States in the Union to meet in Convention at Philadelphia at the time and for 
the purposes aforesaid." ^ 

The instructions to the Connecticut delegates, William Samuel Johnson, 
Roger Sherman, and Oliver Ellsworth, to whose efforts on crucial occasions 
the Constitution is largely due, provide that the three delegates to the conven- 
tion, or any one of them in case of sickness or accident, are authorized and em- 
powered " to Represent this State therein, and to confer with such Delegatesi 
appointed by the several States, for the purposes mentioned in the said Act 
of Congress that may be present and duly empowered to act in said Con- 
vention, and to discuss upon such Alterations and Provisions agreeable to 
the general Principles of Republican Government as they shall think proper 
to render the federal Constitution adequate to the exigencies of Govern- 
ment and, the preservation of the Union." ^ 

''-Documentary History, Vol. iii, p. 9. 

2 Ibid., Vol. i, p. 44. 

^Ihid., p. 14. ^ Ibid., v. 11. 

4 Ibid., p. 38. « Ibid., p. 13. 






THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 153 

And finally, the Maryland delegates are instructed to join with the other 
delegates " in considering such Alterations and further Provisions as may 
be necessary to render the Foederal Constitution adequate to the Exigencies 
of the Union and in reporting such an Act for that purpose to the United 
States in Congress Assembled as when agreed to by them, and duly con- 
firmed by the several States will effectually provide for the same, and the 
said Deputies or such of them as shall attend the said Convention shall, 
have full Power to represent this State for the Purposes aforesaid, and the 
said Deputies are hereby directed to report the Proceedings of the said Con- 
vention, and any Act agreed to therein, to the next session of the General 
Assembly of this State." ^ 

It is apparent from these instructions that the convention in Philadel- 
phia was a conference of the twelve States, continental if not international 
in the strict sense of the word; that the delegates represented the States in 
attendance and, as delegates, acted in accordance with specific instructions; 
that the action of the convention, in whatever form its proceedings might 
be couched, was a recommendation to the Congress and to the States ; and 
that it derived whatever validity it would possess by the ratification of each 
of the States attending the conference or, as in the case of Rhode Island, 
adhering to its recommendation, as is the custom of States invited to but 
not actually participating in an international gathering. The clause con- 
cerning equality in the instructions to the delegates of Delaware was a 
warning to the larger and a rallying point for the delegates of the smaller 
States, when it appeared to them that the larger States were intent on swal- 
lowing them up or merging them in a common union in which the larger 
States would hold the whip hand. 

With the reading of the credentials and the seating of the persons whose 
names were contained in them, there were present members appointed by 
the States for the convention. To act in an expeditious and orderly manner, 
and to accomplish the purpose for which it was called, it was necessary to 
have a system of rules and procedure. Therefore the next step was, to 
quote Mr. Madison's Notes, "the appointment of a committee ... to pre- 
pare standing rules & orders." ^ The Convention therefore adjourned on onR™'"**^ 
Friday the 25th to Monday the 28th, in order to give the committee time ^""^^'^"^ 
to get to work, and at the meeting of the latter date the rules as reported 
were taken up and adopted, with an amendment striking out the call for 
yeas and nays and having them entered on the minutes at the request of 
any member. This procedure would have been proper enough in a par- 
liamentary assembly, where each member represented himself, but improper 

1 Ibid., pp. 25-6. 

2 Ibid., Vol. iii, p. 9, 



154 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

in an international conference, where the member represented the State. 
The reasons, differing in form though not in effect from the one already 
given, were thus stated by Mr. King of Massachusetts, who moved the 
amendment : 

As the acts of the Convention were not to bind the Constituents, it was 
unnecessary to exhibit this evidence of the votes ; and improper as changes of 
opinion would be frequent in the course of the business & would fill the min- 
utes with contradictions. 

To which Mr. Mason of Virginia added: 

That such a record of the opinions of members would be an obstacle to a 
change of them on conviction; and in case of its being hereafter promulged 
must furnish handles to the adversaries of the Result of the Meeting. 

The standing rules and orders as amended in this particular are thus 
worded : 

A House to do business shall consist of the Deputies of not less than seven 
States ; and all questions shall be decided by the greater number of these 
which shall be fully represented; but a less number than seven may adjourn 
from day to day. 

Immediately after the President shall have taken the chair, and the mem- 
bers their seats, the minutes of the preceding day shall be read by the Secre- 
tary. 

Every member, rising to speak, shall address the President; and whilst he 
shall be speaking, none shall pass between them, or hold discourse with an- 
other, or read a book, pamphlet or paper, printed or manuscript — and of two 
members rising at the same time, the President shall name him who shall be 
first heard. 

A member shall not speak oftener than twice, without special leave, upon 
the same question ; and not the second time, before every other, who had been 
silent, shall have been heard, if he choose to speak upon the subject. 

A motion made and seconded, shall be repeated, and if written, as it shall 
be when any member shall so require, read aloud by the Secretary, before it 
shall be debated ; and may be withdrawn at any time, before the vote upon it 
shall have been declared. 

Orders of the day shall be read next after the minutes, and either dis- 
cussed or postponed, before any other business shall be introduced. 

When a debate shall arise upon a question, no motion, other than to amend 
the question, to commit it, or to postpone the debate shall be received. 

A question which is complicated, shall, at the request of any member, be 
divided, and put separately on the propositions of which it is compounded. 

The determination of a question, altho' fully debated, shall be postponed, 
if the deputies of any State desire it until the next day. 

A writing which contains any matter brought on to be considered, shall 
be read once throughout for information, then by paragraphs be debated, 
and again, with the amendments, if any, made on the second reading; and af- 
terwards the question shall be put on the whole, amended, or approved in 
its original form, as the case shall be. 

Committees shall be appointed by ballot; and the members who have the 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 155 

greatest number of ballots, altho' not a majority of the votes present, shall be 
the Committee — When two or more members have an equal number of votes, 
the member standing first on the list in the order of taking down the ballots, 
shall be preferred. 

A member may be called to order by any other member, as well as by the 
President ; and may be allowed to explain his conduct or expressions supposed 
to be reprehensible. And all questions of order shall be decided by the Presi- 
dent without appeal or debate. 

Upon a question to adjourn for the day, which may be made at any time, 
if it be seconded, the question shall be put without a debate. 

When the House shall adjourn, every member shall stand in his place, 
until the President pass him.^ 

It occurred to Mr. Pierce Butler, of South Carolina, that it would be 
advisable to provide against " interruption of business by absence of members, 
and against licentious publications of their proceedings." To this motion 
Mr. Richard Dobbs Spaight, of North Carolina, moved a provision " that 
on the one hand the House might not be precluded by a vote upon any ques- 
tion, from revising the subject matter of it, ^^'hen they see cause, nor, on 
the other hand, be led too hastilv to rescind a decision, which was the re- 
sult of mature discussion." ^ These two motions were referred to the com- 
mittee on standing rules, which, by its chairman, reported the next day the 
following additional rules, which were adopted and thus completed the stand- 
ing rules and orders : 

That no member be absent from the House, so as to interrupt the repre- 
sentation of the State, without leave. 

That Committees do not sit whilst the House shall be or ought to be, 
sitting. 

That no copy be taken of any entry on the journal during the sitting of 
the House without leave of the House. 

That members only be permitted to inspect the journal. 

That nothing spoken in the House be printed, or otherwise published or 
communicated without leave. 

That a motion to reconsider a matter which had been determined by a 
majority, may be made, with leave unanimously given, on the same day on 
which the vote passed ; but otherwise not without one day's previous no- 
tice: in which last case, if the House agree to the reconsideration, some 
future day shall be assigned for that purpose.^ 

From an inspection of the credentials of the members and the procedure international 
adopted for its conduct it is evident that the Federal Convention was a con- convention' ^ 
ference in the international sense. It is clear that the States were repre- 
sented as States, and they voted as States; that a method of procedure was 
devised calculated to put the project in its entirety and in its several parts 
before the convention, to diffuse understanding of it before debate, to furnish 

^Documentary History, Vol. iii, pp. 10-12. 
^ Ibid., p. 13. 
3 Ibid., pp. 14-15. 



156 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

an opportunity for discussion upon each of its parts as well as upon the 
project as it should appear after debate and amendment for the approval 
of the convention ; that committees should not be appointed by the presi- 
dent, even although that president was the impartial Washington, but their 
membership determined by ballot, which excluded favoritism on the part of the 
chair and secured the judgment of the States upon membership without dis- 
closing the vote of the individual delegates; that members could not absent 
themselves without leave of the conference, in order that business should 
not be interrupted by their absence; that, to give all members an oppor- 
tunity to keep in touch with'the proceedings, no committee should sit while 
the convention itself was in session; and that, for their better information, 
they might indeed inspect the Journal, but, to secure the secrecy necessary 
to the success of the conference, only the members might do so, and nothing 
spoken in debate should be printed or published or communicated without 
leave. 

As these standing rules and orders enabled a free and a fair exchange 
of views in the conference which drafted the agreement of the States, 
which is today the oldest existing written instrument of government, if 
the Constitution of Massachusetts be excluded, they are worthy of consid- 
eration for an international conference which shall draft and recommend 
projects to the States forming the society of nations, when the nations meet 
again in conference and may be inclined to provide the Society with some 
form of organization. It is to be borne in mind that each State is the 
equal in law, though not necessarily in influence, of all others represented 
in conference. Because of this, the rule of unanimity may be thought to be 
requisite, yet inasmuch as, then as now, the State is only bound by its own 
consent, and as the acts of the convention or conference do not of them- 
selves bind the constituents, all questions may, in some future conference, 
as in the Federal Convention at Philadelphia, " be decided by the greater 
number of those which shall be fully represented." 

Immediately after the additions to the standing rules and the rejection 
of the motion that a committee be appointed to superintend the minutes, 
which would have been wise in view of the careless manner in which they 
were kept by the secretary, Mr. Randolph, to quote Mr. Madison's Notes, 
" then opened the main business," and after expressing regret, as is the wont 
of public speakers, that the duty of opening proceedings should have fallen 
to one without greater experience, — he had been attorney general and was 
then governor of the State of Virginia, and destined to be attorney general 
and secretary of state of the United States, — he adverted to the fact that 
the convention, having originated from Virginia, some proposition would 
be expected to emanate from the delegation of that State, and that the duty 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 157 

of laying the proposition of his colleagues before the convention and of 
explaining its terms had devolved upon him. In the course of what may 
be considered his introduction, he observed that, in revising the federal 
system, inquiry should be made into the properties which such a government 
ought to possess, the defects of the Confederation, the danger of the situa- 
tion in which they found themselves, and the remedy. On the first point 
he said : 

The character of such a government ought to secure 1. against foreign 
invasion : 2. against dissensions between members of the Union, or seditions 
in particular States : 3. to procure to the several States various blessings, of 
which an isolated situation was incapable : 4. to be able to defend itself 
against encroachment : & 5, to be paramount to the state constitutions.^ 

The defects of the Confederation he attributed somewhat condescend- 
ingly to " the then infancy of the science, of constitutions, & of confederacies," 
and to the further fact that the framers of the Articles had not then the 
benefit of experience, but he graciously concluded that perhaps nothing better 
could be obtained from the jealousy of the States with regard to their 
sovereignty. 

Enumerating what he considered the defects of the Articles, he said : 

1. that the confederation produced no security against foreign invasion; 
congress not being permitted to prevent a war nor to support it by their own 
authority — . . . that they could not cause infractions of treaties or of the 
law of nations to be punished : that particular states might by their conduct 
provoke war without controul ; and that neither militia nor draughts being fit 
for defence on such occasions, enlistments only could be successful, and these 
could not be executed without money. 

2. that the federal government could not check the quarrels between 
states, nor a rebellion in any, not having constitutional power Nor means to 
interpose according to the exigency. 

3. that there were many advantages, . . . which were not attainable un- 
der the confederation — such as a productive impost — counteraction of the 
commercial regulations of other nations — pushing of commerce ad libitum — 

&C&C. 

4. that the foederal government could not defend itself against the en- 
croachments from the states. 

5. that it was not even paramount to the state constitutions, ratified as it 
was in many of the states.^ 

After referring to the danger of the situation and the prospect of anarchy, 
due to the general laxity of government, he then proceeded to point out the 
remedy, " the basis of which he said must be the republican principle." 

It has been thought advisable to state somewhat fully Mr. Randolph's 
views on the first and second points of his address, in order that the reader 



^Documentary History, Vol. iii, p. 15. 
'Ibid.,pv. 15-16. 



Fifteen 
Resolutions 



158 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

may, as far as possible, be in the position of his auditors, and be better able 
to appreciate the remedy which, Mr. Randolph was careful to say, should 
be of a republican nature, and which he laid before the convention with 
appropriate explanations, which unfortunately have not been preserved. 
Mn Randolph's The Virginian or the Randolph plan, as it is indiscriminately called, con- 
sisted of fifteen resolutions. They were the basis of discussion from the 
day of their presentation, and are to be considered as embodying the general 
principles which expanded, systematized in the form of articles, form the 
more perfect Union of the United States and their constitution. 

The first proposes that the Articles of Confederation be corrected and en- 
larged in the interest of " common defense, security of liberty, and general 
welfare." 

The second, that suffrage in the National Legislature be proportioned " to 
the Quotas of Contribution, or to the number of free inhabitants." 

The third, that the National Legislature consist of two branches. 

The fourth, that " the members of the first branch of the National 
Legislature " be elected by the people of the several States for a term of 
years, that they be of a certain age, that they receive compensation for their 
services, and that they do not hold any office under the State or the United 
States incompatible with their position. 

The fifth, that " the members of the second branch of the National Legis- 
lature " be elected by the first branch of the legislature from a list of nominees 
of the State legislatures, to hold office under approximately the same condi- 
tions as those of the first branch. 

The sixth, that each branch originate legislation, that the National 
Legislature enjoy the rights vested in Congress by the Confederation, and 
such other rights for which the separate States are " incompetent," or in 
which the harmony of the United States is interrupted by State legislatures ; 
that it possess in addition the right " to negative all laws passed by the several 
States contravening in the opinion of the National Legislature the articles of 
Union; and to call forth the force of the Union ag^'. any member of the 
Union failing to fulfill its duty under the articles thereof." 

The seventh, that a National Executive, ineligible for a second term, 
chosen by the National Legislature for a term of years, be instituted, to re- 
ceive a salary not subject to increase or diminution for his services, to execute 
the national laws and to enjoy " the Executive rights vested in Congress by 
the Confederation." 

The eighth, that a Council of Revision of " the Executive and a convenient 
number of the National Judiciary " be created, with authority to examine 
the acts of the National and of each State Legislature and to reject them 
under certain contingencies. 



THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 159 

The ninth, that a National Judiciary, consisting or one or more supreme 
and of inferior tribunals, be chosen by the National Legislature, composed 
of judges holding office during good behavior, receiving a salary not subject 
to increase or diminution during their term of office; that the inferior 
tribunals decide in first instance and the supreme tribunal in dernier ressort 
national and international questions, such as piracies and felonies committed 
on the high seas, captures made from an enemy, cases affecting foreigners 
or citizens of other States, the National revenue, impeachment of National 
officers, and, finally, " questions which may involve the national peace and 
harmony." 

The tenth, that new States be admitted to the Union formed of terri- 
tory within the limits of the United States, without requiring a unanimous 
vote in the National Legislature. 

The eleventh, that a Republican government and the territory belonging 
to each State be guaranteed by the United States, " except in the instance of 
a voluntary junction of Government & territory." 

The twelfth, that provision be made to continue the existing govern- 
ment and its obligations until " a given day after the reform of the articles 
of Union." 

The thirteenth, that provision be made for amendment of " the Articles 
of Union," without requiring the assent of the National Legislature. 

The fourteenth, that the officers of the several States be bound by oath 
to support " the articles of Union." 

The fifteenth, and last, that the amendments offered to the Confedera- 
tion by the convention be, with the approbation of Congress, submitted to 
conventions within the several States chosen by the people " to consider & 
decide thereon." ^ 

It will be observed that Mr. Randolph's resolutions fall into four groups, The 
based upon the theory and the practice of the separation of powers to be Groups 
found, with more or less completeness, in every one of the constitutions of 
the thirteen States constituting the Confederation; that, leaving out the first 
resolution, to the effect that the Articles of Confederation should be cor- 
rected and enlarged in order to secure " the common defence, security of 
liberty, and general welfare," the second to the sixth, inclusive, deal with the 
legislative branch of government, the seventh and eighth with the executive 
department, the ninth with the judiciary (as did the ninth of the Articles of 
Confederation), and the remaining six with matters of a general nature, falling 
within the scope of the proposed government but of a general nature in the 
sense that no one of them belonged exclusively to any one of the three 

^Documentary History, Vol. iii, pp. 17-20. 



160 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

branches into which the government of the more perfect Union was to be 
divided. 

With the text of the Articles of Confederation before our eyes, it would 
appear that, grafting these resolutions upon the Articles was very like pour- 
ing new wine into old bottles, with the result to be expected of such a 
process. For the strongest advocate of the Articles of Confederation would 
not suggest that they provided for the threefold division of government, in 
the sense in which, each of the States had done. The Congress under the 
Confederation did indeed possess the power of recommending, rather than 
of legislating, and the right, if not the power, in all cases of executing recom- 
mendations approved by the States, or its own acts in so far as the States 
did not interpose. If the Congress is to be considered as an executive, it 
was a numerous body, not a single person. The judicial power, in so f^r 
as it was contained in the Articles, consisted of the right to create a court 
for the trial of piracies and felonies committed on the high seas, which 
was never created, of a right to create a court of appeals in cases of capture, 
which was indeed created, but whose decisions depended upon the mere 
pleasure of the States for their enforcement; and finally, a power to call 
into being temporary tribunals, courts or commissions for the settlement 
of disputes and differences between two or more States concerning boundary, 
jurisdiction or any other matter of a justiciable nature. 

It is true that the States under tbe-Articles of Confederation renounced 
the exercise of certain rights, such as negotiating with foreign countries or 
concluding treaties of alliance with themselves, or going to war either with 
foreign countries or with one another, but there was apparently no power 
lodged in the Congress to make any of these rights effective. 
Change of The Couveutiou was called by the Congress for the sole and exclusive 

Purpose ptirpose of revising the Articles of Confederation and of rendering them 

more effective. A strict and literal construction of this mandate would have 
suggested, if it did not require, the reading of the Articles as a whole, the 
discussion of each one of them in detail and its adoption as- amended, and a 
vote upon the completed instrument as a whole as thus corrected and en- 
larged. This was not the method proposed by the Virginian plan, and a 
proposition to make the Articles of Confederation the basis of discussion 
was rejected by the Convention, which wisely preferred, in accordance with 
the procedure obtaining in international conferences, to invite the presenta- 
tion of projects, to make one or more of them the basis of discussion, to 
refer, in original or amended form, those which met with approval to a 
drafting committee, called by the Federal Convention the Committee of 
Detail, to be inserted in their proper places in the treaty or convention under 
amendment, or to form a separate treaty or convention if the original one 



THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 161 

was displaced or if one did not exist. The result was also in accord with 
the practice of international conferences, from which, as a man well versed 
in their affairs has wittily said, we may expect anything except the procedure 
outlined in the program. 

It is frequently stated in works of authority that the convention should 
have revised the Articles as its call was limited to their revision, and that 
failing to do so their proceedings were revolutionary. The charge was made 
on more than one occasion in the convention itself, but the answer then 
advanced was conclusive, at least it appeared so to the members; that it was 
proper for the convention to submit a draft of a more perfect Union which 
in their opinion was calculated to effect the purposes which lay behind the 
call of the conference, inasmuch as the labor of their hands would only be 
a recommendation to the Congress, and that in any event the form of gov- 
ernment, if approved by the Congress, would be submitted to the States 
for their approval or rejection and would derive all its power and effect 
from the approval of the States. Or, as more elegantly expressed by the 
illustrious Washington, in speaking of the conference, that they should 
" raise a standard to which the wise and the honest can repair." 

It will be observed that Mr. Randolph's resolutions speak of a national 
legislature, a national executive, a national judiciary, from which the conse- 
quence is often drawn that the framers intended to and actually did create 
a nation in which the States were merged and their identity lost, instead of of Free 
a Union of the States, the government whereof was vested with the exer- 
cise of certain sovereign powers, expressly enumerated in the Constitution 
or arising by necessary implication from the grant of specific powers which 
the States made to the Union, renouncing at the same time, in behalf of the 
Union, certain sovereign powers expressly enumerated or arising from neces- 
sary implication. In the course of the proceedings, to be specific on June 
20th, the term " national " in its relation to the legislature was stricken upon 
the motion of Oliver Ellsworth, of Connecticut, substituting " government 
of the United States " for " national legislature." ^ But it is believed that 
this amendment is immaterial, inasmuch as the term " national " was used as 
opposed to the federal form of government then existing, and that, in the 
language of the period, the term " consolidated " was employed where we 
of today would properly use national. The framers of the Constitution 
were more intent upon things than words. 

We do not, however, need to resort to speculation, inasmuch as Mr. 
Madison has himself explained the sense in which the term " national " was 
to be understood in the Virginian resolutions. Thus, in a letter dated March 
25, 1826, to Mr. Andrew Stevenson, a fellow Virginian, member of Con- 

1 Robert Yates, Secret Proceedings and Debates of the Convention, 1821, p. 142. 



States 



162 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

gress, later Speaker of that body and Minister to England, Mr. Madison 
said: 

The Word Will you pardon me for pointing out an error of fact into which you have 

"National" fallen, as others have done, by supposing that the term, national applied to 

the contemplated Government, in the early stage of the Convention, particu- 
larly in the propositions of M"". Randolph, was equivalent to unlimited or 
consolidated. This was not the case. The term was used, not in contradis- 
tinction to a limited, but to a federal Government. As the latter operated 
within the extent of its authority thro' requisitions on the Confederated 
States, and rested on the sanction of State Legislatures, the Government to 
take its place, was to operate within the extent of its powers directly & coer- 
cively on individuals, and to receive the higher sanction of the people of the 
States. And there being no technical or appropriate denomination applicable 
to the new and unique System, the term national was used, with a confidence 
that it would not be taken in a wrong sense, especially as a right one could 
be readily suggested if not sufficiently impHed by some of the propositions 
themselves. Certain it is that not more than two or three members of the 
Body and they rather theoretically than practically, were in favor of an un- 
hmited Gov*, founded on a consolidation of the States ; and that neither M^ 
Randolph, nor any one of his colleagues was of the number. His propositions 
were the result of a meeting of the whole Deputation, and concurred or ac- 
quiesced in unanimously, merely as a general introduction of the business ; 
such as might be expected from the part Virginia had in bringing about the 
Convention, and as might be detailed, and defined in the progress of the work. 
The Journal shews that this was done.^ 

Again he wrote, in a letter dated December 26, 1826, addressed to Thomas 
Cooper : 

With respect to the term " National " as contradistinguished from the 
term " federal," it was not meant to express the extent of power, but the 
mode of its operation, which was to be not like the power of the old Confed- 
eration operating on States; but like that of ordinary Governments operating 
on individuals ; & the substitution of " United States " for " National " noted 
in the journal, was not designed to change the meaning of the latter, but to 
guard ag'. a mistake or misrepresentation of what was intended. The term 
" National " was used in the original propositions offered on the part of the 
Virg^. Deputies, not one of whom attached to it any other meaning than 
that here explained. Mr. Randolph himself the organ of the Deputation, 
on the occasion, was a strenuous advocate for the federal quality of limited 
& specified powers ; & finally refused to sign the constitution because its pow- 
ers were not sufficiently limited & defined.^ 

And in a letter written in December, 1831, to Mr. N. P. Trist, Mr. Madi- 
son recurred to this question and thus elaborated his views : 

The whole course of proceedings on those Resolutions ought to have satis- 
fied him [one Col. Taylor, whose views Madison was combating] that the term 
National as contradistinguished from Federal, was not meant to express 



''■Documentary History, Vol. v, pp. 332-3. 

2 rhirl T^ ^TO 



'■ Ibid., p. 339. 



THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE 163 

more than that the powers to be vested in the new Gov', were to operate 
as in a Nat'. Gov', directly on the people, & not as in the Old Confed'^''. on the 
States only. The extent of the powers to be vested, also tho' expressed in 
loose terms, evidently had reference to limitations & definitions, to be made 
in the progress of the work, distinguishing it from a plenary & Consolidated 
Gov'. 

It ought to have occurred that the Gov', of the U. S being a novelty & a 
compound, had no technical terms or phrases appropriate to it ; and that old 
terms were to be used in new senses, explained by the context or by the facts 
of the case. 

Some exulting inferences have been drawn from the change noted in the 
Journal of the Convention, of the word National into " United States." The 
change may be accounted for by a desire to avoid a misconception of the for- 
mer, the latter being preferred as a familiar caption. That the change could 
have no efifect on the real character of the Gov', was & is obvious ; this being <* 
necessarily deduced from the actual structure of the Gov', and the quantum 
of its powers.^ 

The convention, it appears, met for the second time on May 29th at 
ten o'clock, — at least it had adjourned to that hour. Some time was taken 
up by the discussion of amendments to the standing rules. Mr. Randolph's 
address, opening " the main business," must have been an elaborate one, 
and his comments upon his fifteen resolutions " which he explained one by 
one," must have consumed much time; and the House must have been ready 
to adjourn at the conclusion of his remarks, for immediately thereafter it 
was resolved, to quote Mr. Madison's Notes, " That the House will tomorrow 
resolve itself into a Committee of the whole House to consider of the state 
of the American Union — and that the propositions moved by M'. Randolph 
be referred to the said Committee." ^ It appears, however, from the entry 
immediately following in Mr. Madison's Notes, that " Mr. Charles Pinkney other 
laid before the House the draft of a federal Government which he had pre- 
pared, to be agreed upon between the free and independent States of America." 
Probably due to the lateness of the hour, Mr. Pinckney contented himself 
with laying his plan before the convention, accompanying it with some few 
remarks instead of by an elaborate speech, as Mr. Madison does not give a 
summary of an address. It is said in The Secret Proceedings of the Federal 
Convention, consisting of notes made by Robert Yates, a delegate from 
New York, while he remained in attendance after an account of the Randolph 
resolutions, that " Mr. C. Pinckney, a member from South Carolina, then 
added, that he had reduced his ideas of a new government to a system, which 
he read, and confessed it was grounded on the same principle as of the above 
resolutions." ' Mr. Pinckney's plan, of which the text is not contained in 
any contemporary account, was likewise referred to the Committee of the 
Whole, and the Convention adjourned for the day. 

At a later period a plan was laid before the convention by ]\Ir. Patter- 

^Ihid., pp. 377-8. ^Ibid., Vol. iii, p. 14. 

' Yates, Secret Proceedings, p. 97. 



164 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

son of New Jersey, and called indifferently the Patterson or the New Jersey 
plan. This proposed a revision of the Articles of Confederation in accord- 
ance with the recommendation of Congress, but it did not meet with favor 
and was, after discussion and debate, rejected in favor of Mr. Randolph's 
resolutions, although, as will appear, it had a decided influence on the course 
of proceedings, and was referred, with the Randolph resolutions, as amended 
and enlarged, and with Mr. Pinckney's plan, to the Committee of Detail to 
prepare a draft of the Constitution. 

These were the only plans laid before the convention at any time, 
although Alexander Hamilton felt called upon, as did Mr. Pinckney, to ex- 
press his personal views to the convention. They were, in the language of 
the day, " high toned," that is to say, they looked to a consolidated form of 
government, consisting of a threefold distribution of powers, in which the 
States were allowed to exist but reduced practically to the level of provinces, 
in which the executive was to hold office during good behavior, and, among 
other powers, was to appoint governors of the States, to hold office during 
his pleasure. This project fell flat, meeting, as far as known, only with 
the approval of George Read of Delaware, and its distinguished author did 
not feel encouraged to present a draft of a constitution in accordance with 
his views, although he did hand one to Mr. Madison at a much later period 
before the adjournment of the Convention. It was not laid before the 
Committee of Detail and, so far as known, Mr. Hamilton's views had no 
influence with that committee or in the convention, although his influence 
later brought about the ratification of the Constitution by the State of New 
York.^ To secure this object and to turn the tide of public opinion in favor of 
the Constitution, he proposed and, with the large cooperation of James Madi- 
son and some help from Mr. Jay, wrote and published in the press a series of 
some eighty-six articles which, known in their collected form as The Fed- 
eralist, are universally regarded as the classic exposition of the Constitution. 

National Bcforc passiug to a consideration of the main subdivisions of Mr. 

Government Raudolph's resolutions, it is advisable to call attention to Mr. Madison's 

distinction between a national government, on the one hand, operating upon 
individuals, and a purely federal government on the other hand, operating 
upon States, a distinction which arose early in the course of debate. It did 
not appear clearly in the text of Mr. Randolph's resolutions, although it may 
have been in the minds of the Virginia members who stood sponsor for the 
plan. In any event, the national legislature was empowered by the sixth reso- 

1 In his Memoirs, under date of November 19, 1818, John Quincy Adams records Major 
William Jackson, of Philadelphia, who had called upon him, as saying, " He told me how 
he had been chosen Secretary to the Convention . . . and said that by far the most efficient 
member of the Convention was Mr. Madison ; that Mr. Hamilton took no active part in it. 
and made only one remarkable speech." The Records of the Federal Convention, Max 
Farrand, Editor. Vol. UI (1911). p. 426. 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 165 

lution " to call forth the force of the Union ag*'. any member of the Union 
failing to fulfil its duty under the articles thereof." ^ On the very next day 
Mr. Mason observed, as reported by Mr. Madison, " that the present con- 
federation was not only deficient in not providing for coercion & punish- 
ment ag^'. delinquent States ; but argued very cogently that punishment could 
not in the nature of things be executed on the States collectively, and there- 
fore that such a Gov*, was necessary as could directly operate on individuals, 
and would punish those only whose guilt required it." ^ The day following, st°aTes°° °* 
when this clause of the sixth resolution came up for consideration, Mr. Madi- 
son himself observed, as stated in his Notes, " that the more he reflected on the 
use of force, the more he doubted, the practicability, the justice and the efficacy 
of it when applied to people collectively and not individually. — A union of 
the States containing such an ingredient seemed to provide for its own de- 
struction. The use of force ag*\ a State, would look more like a declara- 
tion of war, than an infliction of punishment, and would probably be con- 
sidered by the party attacked as a dissolution of all previous compacts by 
which it might be bound. He hoped that such a system would be framed 
as might render this recourse unnecessary, and moved that the clause be 
postponed," — a motion which was " agreed to nem. con." ^ 

There was no opposition to the general plan, as the States were familiar 
with the threefold division of power and their delegates were apparently 
willing to provide the Union with a government of this kind. Indeed, the 
threefold division seemed to disarm opposition and to lead the delegates 
to invest the government with greater power than would otherwise have 
been the case, and Mr. Madison quotes Mr. Butler of South Carolina as 
saying, in the session of May 30, 1787, on the very threshold of the de- 
bates, " that he had opposed the grant of powers to Cong^. heretofore, be- 
cause the whole power was vested in one body. The proposed distribution 
of the powers into different bodies changed the case, and would induce him o"G™n"ar" 
to go great lengths." ■* 

In a constitution meant to endure, — and the delegates of the Federal 
Convention hoped they were doing no vain thing, — it was impossible to 
foresee every contingency and to provide against it by a specific enumera- 
tion of powers. The convention therefore wisely contented itself with the 
enumeration of what may be called general powers which a government 
adequate to the exigencies of the Union should possess, powers w-hich could 
be better exercised by the Union of the States than by any one State. Too 
long to quote, it is difficult to summarize these powers, inasmuch as the 

^Documentary History, Vol. iii, p. 18. 

2 Ibid., p. 22. 

3 Ibid., pp. .^3-4. 
*/fo< p. 21. 



Powers 



166 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

language of the Constitution is so familiar as at times to defy paraphrase 
and so concise as to make a summary seem longer than the original. With- 
out attempting the impossible, it may be observed that the great defect of 
the Articles of Confederation was met and overcome by empowering the 
Congress " to lay and collect taxes, duties and imposts," with the wise and 
indeed necessary proviso that they should be uniform throughout the United 
States. This would enable the more perfect Union to pay the debts already 
contracted and those which should be incurred in the future, and to do what 
the League of Friendship under the Articles of Confederation had never 
been able to do, namely, to "provide for the common defence and general 
welfare of the United States." It was foreseen that the government of the 
Union might need to borrow money, therefore it was specifically authorized 
to do this. 

The second great defect of the Articles was the chaotic condition of com- 
merce and the inability of the Confederation to regulate it. All attempts to 
amend the Articles in this sense had failed, but they were not fruitless, inas- 
much as the Annapolis Convention called for this purpose brought about 
the Federal Convention of 1787, which accomplished it. Hence the Con- 
gress was given power to regulate commerce with foreign nations, the several 
States, and the Indian tribes. 

The Confederation was, according to its critics, largely a bankrupt con- 
cern. It therefore had very special reasons to recognize the need of uniform 
laws on the subject and invested Congress with the power to make them. 
It was necessary to have money, therefore Congress was empowered to coin 
money, to regulate its value and that of foreign coin, and in the interest 
of trade and commerce to fix the standard of weights and measures. And 
to make these clauses effective, the Congress was authorized to punish counter- 
feiting of the securities and current coin of the United States. Allied with 
this phase of the subject, although not necessarily connected with it, was the 
progress of science and useful arts, therefore the Congress was given 
authority to make laws securing to authors and inventors copyrights and 
patents for " their respective writings and discoveries." 

As it was recognized that a vast Union could not be held together for 
any length of time without means of communication, the Congress was 
authorized to establish post offices and post roads. Vast indeed the terri- 
tory was, although but a fraction of that now subject to the laws of the 
Union. It was sparsely settled, but it was anticipated that large numbers 
of persons would forsake the old to find fortune and happiness in the new 
world. Accordingly the Congress was given the power " to establish an 
uniform Rule of Naturalization " that the new might enjoy the rights of 
the old. 



THE FEDERAL CONVENTION : AN INTERNATIONAL CONFERENCE 167 

The government v^as to be one of laws, not of men, therefore there was 
to be a Supreme Court which would interpret the laws and apply them 
to the concrete cases as they arose between States as well as their citizens, 
and likewise inferior tribunals. But the law was not merely to be the law 
of the States or of the Union ; it was to be a law of the seas as well, and L"%rSfth°e° 
the Congress was given the power to punish piracies and felonies committed 
on the high seas beyond the jurisdiction of the States and of the United 
States. Wisely the Congress was vested with the power to define and punish 
" offences against the Law of Nations," a mere clause, yet introducing the 
whole body of international law, making it a part of the Constitution of the 
United States and of each State of the Union, for every citizen and inhabitant 
thereof. The Law of Nations of that day recognized letters of marque and 
reprisal, as it still does captures on land and water. Congress could there- 
fore have enacted laws on these subjects without a specific authorization, 
yet the experience of the Confederation doubtless suggested the advisability 
of specific mention. They were then and are now incident to war, and on 
this point the framers of the Constitution, intent upon a government of 
laws not of men, were unwilling to trust any person to declare war, even 
the august president of the convention, General Washington himself, already 
designated in the minds and hearts of his countrymen to be the first of a 
line of presidents of the Union. Therefore only the Congress was to de- 
clare war, a body whose lower house was composed of representatives of the 
people of each State chosen by the people themselves divided into districts, 
and whose upper house was composed, of two representatives from all States, 
large and small, representing the States. Representatives of the people and 
of the States do indeed declare war upon occasion, but not as easily and 
readily as members of a family owing their position and prestige to war and 
too often anxious to perpetuate them by the same means. 

The Congress has so far been given the power to raise, borrow, and coin 
money, to regulate commerce, to establish means of communication, and 
to protect what may be called intellectual property, to establish inferior 
tribunals to administer within the States, to accept jurisdiction and punish 
violations of the Law of Nations, and to declare war. Consequently the 
Congress was vested with the powers incidental to the declaration of war, 
the power to raise and support land and naval forces and to make rules 
for their government. The war of course was to be carried on by the 
United States, not by any one of the States, inasmuch as each had by the 
Constitution renounced the right to wage war unless attacked. The presi- 
dent was indeed to be Commander-in-Chief of the army and navy, but Con- 
gress was to raise and support the armies, to provide and maintain a navy, 
and to make the rules of their government, as well as to declare war. And 



168 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Government 
of Laws and 
Not of Men 



Government 
of Limited 
Povi'ers 



to make the rights of Congress secure in the premises, no appropriation of 
money for these purposes was to be for " a longer Term than two Years." 
War was thus to be declared by civilians, armies and navies were to be 
raised and supported by civilians, the rules for their government were to be 
made by civilians, the army and navy in the war were to be commanded by 
a civilian, to the end that this may be a government of laws and not of men. 

While the States as such were not to wage war, it was clearly understood 
that they might have need of an armed force to protect them and their 
peoples, therefore each was to have a militia to be raised and officered by 
them, to be commanded by them in times of peace, but in time of war to 
be called into the service of the States as a whole instead of the individual 
States. Therefore the Congress was given the power to call forth " the 
Militia to execute the Laws of the Union, suppress Insurrections and repel 
Invasions." Because of this eventual service, the Congress was authorized 
to provide for " organizing, arming, and disciplining, the Militia, and for 
governing " the part of it taken into the service of the Union, the States 
reserving, however, the appointment of officers and the right of training the 
militia according to the discipline prescribed by Congress. 

Thus far we have a government without a habitat, for the Union was 
a Union of the States, and the territory to the west of the States belonged 
to the States. There was not a foot of American soil belonging to the Union 
as such. In this Union the States were to be equals. There was to be no 
primus inter pares. No State was to be vested with any prerogative, privilege 
or function not possessed by all. Therefore the Congress was authorized 
to accept and exercise exclusive jurisdiction within a district not exceed- 
ing ten miles square as particular States might cede, to become " the Seat 
of the Government of the United States," and the Congress was similarly 
authorized to exercise a like authority " over all places purchased by the Con- 
sent of the Legislature of the State in which the Same shall be, for the Erec- 
tion of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." 

This was indeed a government of limited powers and limited extent, the 
seat of government itself ten miles square, to be ceded by the States if they 
should choose to do so, and any property acquired within the States to be 
purchased by the Congress with the consent of the legislature of the State 
involved. The enumeration of these powers necessarily carried with it the 
right to make such laws as should be necessary and proper to carry them 
into execution, but it was well to say so in order to remove doubt or mis- 
understanding, as also to authorize the Congress, as was done by the final 
paragraph of the eighth section of the first article, to carry into execution 
" all other Powers vested by this Constitution in the Government of the 
United States, or in any Department or Officer thereof." 



VIII 
CREATION OF THE FEDERAL LEGISLATURE 

All states have three elements, and the good law-giver has to regard what is expedient 
for each state. When they are well-ordered, the state is well-ordered, and as they differ 
from one another, constitutions differ. What is the element first (1) which deliberates 
about public affairs; secondly (2) which is concerned with the magistrates and determines 
what they should be, over whom they should exercise authority, and what should be the 
mode of electing them; and thirdly (3) which has judicial power? {The Politics of Aris- 
totle, English translation by Benjamin Jowett, 1885, Vol. I, Book IV, Ch. 14, p. ijj.) 

They saw that to live by one man's will became the cause of all men's misery. This con- 
strained them to come unto laws, wherein all men might see their duties beforehand, and 
know the penalties of transgressing them. {Richard Hooker, Of the Laws of Ecclesiastical 
Polity, 1594, Church edition, 1868, Book I, Section 10, p. 56.) 

The government of the United States has been emphatically termed a government of 
laws, and not of men. It will certainly cease to deserve this high appellation, if the laws 
furnish no remedy for the violation of a vested legal right. {Mr. Chief Justice Marshall in 
Marbury v. Madison, i Crane h 137, 163, decided in 1803.) 

Relation being had to these two times, Government (to define it de jure, or according 
to antient Prudence) is an Art whereby a Civil Society of Men is instituted and preserv'd 
upon the Foundation of common Right or Interest; or (to follow Aristotle and Livy) 
It is the Empire of Laws, and not of Men. 

And Government (to define it de facto, or according to modern Prudence) is an Art 
whereby some man, or some few men, subject a City or a Nation, and rule it according to 
his or their private Interest : which, because the Laws in such cases are made according to 
the interest of a man, or of some few Families, may be said to be the Empire of Men, and 
not of Laws. {James Harrington, The Common-ti'ealtli of Oceana, 1656, Poland edition, 
^737, Pa^t I, The Preliminaries, Shelving the Principles of Government, p. 37.) 

But it is plain that where the Law is made by one Man, there it may be unmade by one 
man; so that the Man is not govern'd by the Law, but the I-aw by the Man; which amounts 
to the Government of the Man, and not of the Law : Whereas the Law being not to be 
made but by the Many, no man is govern'd by another man, but by that only which is the 
common interest ; by which means this amounts to a Government of Laws, and not of 
Men. {James Harrington, The Art of Law-giving, 1659, Tolan-d edition, 1737, Preface, p. 
386.) 

Where the People are not over-balanc'd by one Man, or by the Few, they are not capable 
of an,y. other Superstructures of Government, or of any other just and quiet settlement 
whatsoever, than of such only as consists of a Senate as their Counsillors, of themselves or 
their Representatives as Sovereign Lords, and of a Magistracy answerable to the People, 
as distributers and executioners of the Laws made by the People. And thus much is of 
absolute necessity to any or every Government, that is or can be properly call'd a Common- 
wealth, whether it be well or ill order'd. 

But the necessary definition of a Common-wealth, any thing well order'd, is. That if 
is a Government consisting of the Senate proposing, the People resolving, and the Magis- 
tracy executing. 

Magistracy is a stile proper to the executive part : yet because in a Discourse of this kind 
it is hardly avoidable, but that such as are of the proposing or resolving Assemblies, will 
be sometimes compriz'd under this name or stile, it shall be enough for excuse to say, that 
Magistracy may be esteem'd of two kinds ; the one proper or Executive, the othe'r improper 
or Legislative. {James Harrington, The Art of Lazv-giving, 1639, Toland edition, 1737, 
Ch. VI, p. 393.) 

Thirdly. I know what is said by the several admirers of monarchy, aristocracy and de- 
mocracy, which are the rule of one, a few, and many, and are the three common ideas of gov- 
ernment, when men discourse on the subject. But I chuse to solve the controversy with this 

169 



170 THE UNITED -STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



^ 



small distinction, and it belongs to all three: Atty government is free to the people under it 
(whatever be the frame) zvliere the laws rule, and the people are a party to those laws, and 
more than this is tyranny, oligarchy, or confusion. (William Penn's Preface to the Frame 
of Govern;nent of Pennsylvania, 1682, Ben. Perley Poore, The Federal and State Consti- 
tutions, Colonial Charters, and other Organic Laws of the United States, Part II, 1877, 
P- 1519-) 

The great end of Mens entring into Society, being the Enjoyment of their Properties 
in Peace and Safety, and the great instrument and means of that being the Laws establish'd 
in that Society; the iirst and fundamental positive Law of all Commonwealths, is the estab- 
lishing of the Legislative Power; as the first and fundamental natural Law, which is to 
govern even the Legislative itself, is the preservation of the Society, and (as far as will 
consist with the publick good) of every person in it. {lohn Locke, Two Treatises of 
Government, 1690, Book II, Ch. XI, section 134, Works, Edition of 17 14, Vol. II.) 

The Supream Power cannot take from any Man any part of his Property without his 
own Consent. . . . This is not much to be fear'd in Governments where the Legislative 
consists, wholly or in part, in Assemblies which are variable, whose Members upon the 
dissolution of the Assembly, are Subjects under the common Laws of their Country, equally 
with the rest. (John Locke, Two Treatises of Government, 1690, Book II, Ch. XI, section 
138, Works, Edition of 1714, Vol. II.) 

When the legislative and executive powers are united in the same person, or in the same 
body of magistrates, there can be no liberty; because apprehensions may arise, lest the same 
monarch or senate should enact tvrannical laws, to execute them in a tyrannical manner. 

Again there is no liberty, if the power of judging be not separated from the legislative 
and executive powers. Were it joined with the legislative, the life and liberty of the subject 
would be exposed to arbitrary controul ; for the judge would then be the legislator. Were 
it joined to the executive power, the judge might behave with all the violence of an oppressor. 

There would be an end of every thing, were the same man, or the same body, whether 
of the nobles or of the people, to exercise those three powers, that of enacting laws, and 
that of executing the public resolutions, and that of judging the crimes or differences of in- 
dividuals. {M. de Montesquieu, L'Esprit des Lois, 2 Vols., 1748, English translation of 
1756, Vol. I, Book XI, Chap. VI, p. 165.) 

In the government of this commonwealth, the legislative department shall never exercise 
the executiv.e and judicial powers, or either of them; the executive shall never exercise 
the legislative and judicial powers, or either of them; the. judicial shall never exercise the 
legislative and executive powers, or either of them ; to the end it may be a government 
o'f laws, and not of men. {Declaration of Rights of the Inhabitants of the Commonzvealth 
of Massachusetts, 1780, Ben: Perley Poore, The Federal and State Constitutiffns, Colonial 
Charters, and other Organic Laws of the United States, Part I, 1877, p. 960, Article XXX.) 

" Sir," said Rufus Choate, in the Massachusetts Convention of 1853, for revising the 
Constitution of the State (1 Debates, 120), "that same Bill of Rights, which so solicitously 
separates executive, judicial, and legislative powers from each other, 'to the end,' — in the 
fine and noble expression of Harrington, borrowed from the ' ancient prudence,' one of 
those historical phrases of the old glorious school of liberty of which this Bill of Rights is 
so full, — and which phrases I entreat the good taste of my accomplished friends in my 
eye, to whom it is committed, to spare in their very rust, as they would spare the general 
English of the Bible, — ' to the end it may be a government of laws, and not of men ' ; that 
same Bill of Rights separates the people, with the same solicitude, and for the same re'ason, 
from every part of their actual government, — ' to the end it may be a government of laws 
and not of men.' " (lames Bradley Thayer, Cases on Constitutional Law, 1895, Vol. I, 
foot-note, pp. 384-385.) 

The idea of an .actual representation of all classes of the people by persons of each class 
is altogether visionary. LTnless it were expressly provided inthe Constitution that each 
different occupation should send one or more members, the thing would never take place 
in practice. (Alexander Hamilton, The Federalist, No. 35 [jj], 1788, Ford, Editor, 
1898. p. 2T6) 

The door ought to be equally open to all. (Alexander Hamilton, The FederalisK 
No. 36 [34], 1788, Ford, Editor, 1898. p. 220.) 

The system of representation which grew up in the early colonies under no legal authority 
of the English crown (with the exception of Maryland, where it was only authorized and 



CREATION OF THE FEDERAL LEGISLATURE 171 

not directed), came to be recognized and ratified by subsequent charters. It was ratified 
in Connecticut by the charter of 1662; in Rhode Island by the charter of 1663, and later 
in Massachusetts by the charter of 1692. In the colonies established after the Restoration 
in 1660 it became usual for the English king to grant to the proprietor permission to 
give to the freemen the right to a share in legislation, either in person or by deputies. 
It thus seems evident that the representative system in America had its origin in the 
peculiar circumstances in which the early colonies were placed. It was the product of the 
practical instinct of the Teutonic race, which had given birth to a form of representation 
even before the time of Henry III. or Edward I. It was not established by any charter 
of the English king, and did not receive a chartered sanction until it had become an estab- 
lished institution in the colonies. It had its own peculiar features in America, which were 
evidently not patterned after any existing model. It was rather a reversion to an earlier 
type than a reproduction of an existing one; and was, in fact, more truly representative of 
the whole body of the people than was the contemporary English House of Commons. 
{William C. Morey, The First State Constitutions, Annals of the American Academy of 
Political and Social Science, 1893, Vol. 4, p. 210.) 

The enlargement of population must always be attended either by the decay of demo- 
cratic institutions, or else by the adoption of some form of representation. The special form 
which representation will assume in any people, which possesses the political sagacity to 
solve the problem.s growing out of its own social life, will be determined bv \^c circnm- 
stances of time and place. It will be seen that the form of representation which grew up 
in the American colonies was not a reproduction of the elaborate and comnarativcly mature 
system which then existed in England, but was the outgrowth of the simple life of the 
colonists themselves, and was moreo\-er marked by those inchoate features which distinguish 
a primitive from a well-developed institution. The need of representation was felt by 
the colonists as soon as their population became scattered and unable to meet in a single 
assembly. The system arose from the requirements of the colonists themselves, and was 
fully established before it was recognized by the English crown. (JVilliam C. ilfnrey,^ The 
First State Constitutions, Annals of the American Academy of Political and Social Science, 
1893, Vol. 4, p. 205.) 

A federal state requires for its formation two conditions. 

There must exist, in the first place, a body of countries such as the Cantons of .Switzer- 
land, the Colonies of America, or the Provinces of Canada, so closely connected by locality, 
by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, 
an impress of common nationality. ... 

A second condition absolutely essential to the foundinc: of a federal system is the existence 
of a very peculiar state of sentiment among the inhabitants of the countries which it is 
proposed to unite. They must desire union, and must not desire unity. {Albert Venn 
Dicey, Introduction to the Study of the La%v of the Constitution, 1885, 8th edition, 1915, 
pp. 136-7.) 

A federal state is a political contrivance intended to reconcile national unity and power 
with the maintenance of " state rights." The end aimed at fixes the essential character of 
federalism. For the method by which Federalism attempts to reconcile the apparently in- 
consistent claims of national sovereignty and of state sovereignty consists of the formation 
of a Constitution under which the ordinary powers of sovereignty are elaborately divided 
between the common or national government and the separate states. The tletails of this 
division vary under every, different federal constitution, but the general principle on which 
it should rest is obvious. Whatever concerns the nation as a whole should be placed under 
the control of the national government. .Ml matters which are not primarily of common 
interest should remain in the hands of the several States. , . . 

From the notion that national unity can be reconciled with state independence by a 
division of powers under a common constitution between the nation on the one hand and 
the individual States on the other, flow the three leading characteristics of completely 
developed federalism,— the supremacy of the constitution — the distribution among bodies 
with limited and co-ordinate authority of the different powers of government — the authority 
of the Courts to act as intf^rpreters of the constitution. ( Uhcrt Venn Dicey, Introduction 
to the Study of the Law of the Constitution, 1S85, 8th edition, 1915, pp. 139-140.) 



CHAPTER VIII 



CREATION OF THE FEDERAL LEGISLATURE 



The. 
Spirit of 
Compromise 



The Two 
Branches 
of the 
Legislature 



In Mr. Randolph's resolutions the legislative power precedes the execu- 
tive and the judiciary, and therefore was the first to be taken up; and the 
very first resolution of the group dealing with legislative power raised the 
issues which divided the delegates of the large and the small States into 
hostile camps. But the diflference was adjusted by a concession of the ex- 
treme views of each, resulting in a compromise which made the Constitu- 
tion a possibility; and indeed it may be stated in this connection, as it will 
be illustrated in the course of this narrative, that agreement was only pos- 
sible on that principle of give and take obtaining in international confer- 
ences, and that the Constitution itself is the very creature of compromise and 
concession. The necessary spirit of concession was perhaps best stated by 
Mr. John Langdon of New Hampshire, whom, apropos of the Militia clause 
in the proposed Constitution, Mr. Madison reports as follows: 

M"". Langdon said He could not understand the jealousy expressed by some 
Gentleman. The General & State Gov'^. were not enemies to each other, but 
different institutions for the good of the people of America. As one of the 
people he could say, the National Gov^ is mine, the State Gov*, is mine — 
In transferring power from one to the other — I only take out of my left 
hand what it cannot so well use, and put it into my right hand where it can 
be better used.^ 

The plan provided for a national legislature of two houses, the first and 
the second, which, in the completed instrument appear as the Congress, con- 
sisting of a House of Representatives and a Senate, the first representing 
the people of the States according to their population, the second the States 
or the people within the States, and in which each is represented by two 
Senators, voting as individuals, not as delegates casting their vote under direct 
and specific instructions of the State or the citizens thereof. There was 
practically no objection to the bicameral system, although Pennsylvania, ap- 
parently influenced by Dr. Franklin's preference for a single chamber, pro- 
posed it, only to have it rejected.^ 

Nor was there any great opposition to the powers with which each of 

^Documentary History of the Constitution, Vol. iii, p. 597. 

2 " The 3d Resolution ' that the national Legislature ought to consist of two branches ' 
was agreed to without debate or dissent, except that of 't'ennsylvania, given probabk from 
complaisance to DoC. Franklin who was understood to be partial to a single House of Leg- 
islation." Ibid., p. 26. 

172 



CREATION OF THE FEDERAL LEGISLATURE 173 

these branches was to be vested. These were indeed important matters, but 
they were rather questions of detail, after agreement upon the principle, and 
until that principle was accepted, a Constitution of the kind proposed by the 
Virginian plan was impossible. This principle was that the first branch 
should not merely be elected by the people of the several States but that the 
right of suffrage in the national legislature ought " to be proportioned to 
the quotas of contribution or to the number of free inhabitants." It was 
provided in the fifth resolution that the members of the second branch " ought 
to be elected by those of the first, out of a proper number of persons 
nominated by the individual Legislatures." ^ 

There was little or no opposition to the election of the first branch by 
the people of each and every State, and after no great discussion Mr. 
Dickinson's motion was accepted on June 7th,^ that the members of the second 
branch should be elected by the legislatures of the respective States, thus 
providing the basis for the compromise that the first branch should repre- 
sent the people of the States as such, the second branch the States. The 
instructions of the State of Delaware, however, blocked the way, for although 
they did not prevent a double chamber, if the convention should think such 
a system desirable, they forbade the delegates of that State from accept- 
ing a system in which the States should not have an equal vote. This op- 
position was brought to a head by Mr. Madison, who moved, on May 30th. 
the first session in which the plan was discussed, " that the equality of 
suffrage established by the articles of Confederation ought not to prevail in 
the National legislature, and that an equitable ratio of representation ought 
to: be substituted." * 

It does not need to be recalled that Mr. Madison represented the large 
State of Virginia. In view of the discussion of the matter of equality be- pf"Rep°ef 
tween members of that delegation and of Pennsylvania before the opening ^^^'^t'o"! 
of the convention, it was to be expected that Mr. Madison would be seconded 
by a member of that delegation, and it was, very appropriately by Gouverneur 
Morris, who had raised the question. Mr. Madison, commenting upon his 
motion, says that it was " generally relished " and that it " would have beert 
agreed to ; when, 

Mr. Reed moved that the whole clause relating to the point of Representa- 
tion be postponed ; reminding the Com^. that the deputies from Delaware were 
restrained by their comission from assenting to any change of the rule of 
suffrage, and in case such a change should be fixed on, it might become their 
duty to retire from the Convention.* 

^ Documentary History, Vol. iii, p. 17. 

2 Ibid., p. 87. 

3 Ibid., p. 24. 
*Ibid. 



174 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



After some observations of a general nature, Mr. Read's motion to post- 
pone prevailed, it being understood, according to Mr. Madison, that at most 
the State of Delaware would withdraw if this provision of the Virginian 
plan were agreed to. 

It is to be feared that Mr. Madison, as a representative of the large 
States, was oversanguine in this, as the experience of the convention, as 
well as of other international conferences, shows that, although little States 
may not carry their points against the large ones, they can by uniting their 
forces nevertheless prevent the larger States from working their will to the 
detriment of the smaller. 

It is not material to the present purpose to state in detail the arguments 
advanced by the delegates of the larger States in support of proportional 
representation, or to describe the generous sentiments in which they 
abounded, and the expressions of belief on their part that the rights of the 
smaller States would be sufficiently safeguarded by such an arrangement. 
Nor is it material to summarize the views of the small States, insisting upon 
an equality of right arising from the fact that they were States and from 
their suffering in a common cause, in which they had contributed their 
mite, in any case their all. Mr. Madison himself, in an elaborate argu- 
ment on June 19th, stated it all in a nut-shell when he said that " The great 
difficulty lies in the affair of Representation; and if this could be adjusted, 
all others would be surmountable. It was admitted by both the gentlemen 
from N. Jersey (Mr. Brearly and Mr. Patterson) that it would not be just to 
allow Virg". which was 16 times as large as Delaware an equal vote only. 
Their language was that it would not be safe for Delaware to allow Virg^. 
16 times as many votes. The expedient proposed by them was that all the 
States should be thrown into one mass and a new partition be made into 13 
equal parts." ^ 

The fear of the small States to be absorbed into the larger or deprived 
of their influence, and the unwillingness of the large States to be reduced 
to an equality, as proposed by the small " fry," led to a readjustment of the 
views of both, and it is desirable to consider the steps by which this compro- 
mise was reached. The dissatisfaction of the delegates of the smaller States 
with the national plan was evident from the moment of its introduction, but, 
as in international conferences, they allowed themselves to be rushed along 
until, after conference among themselves, they might hit upon a plan of 
their own, which would unite them in opposition to the resolutions sought 
to be imposed upon them. In this particular case there was a reason for 
delay not ordinarily present in international conferences, in that the dele- 
gates of all the States had not appeared, including some from the lesser 

^Documentary History, Vol. iii, pp. 160-1. 



I 



CREATION OF THE FEDERAL LEGISLATURE 175 

States who could be counted upon. Two States were not represented at all of'stit^ 
in the earlier sessions, and it was felt that, if New Hampshire and Rhode 
Island should appear, they could, as small States, be relied upon as members 
of the opposition. It was bruited abroad that New Hampshire would be rep-; 
resented. On June 27th its delegates were appointed, although they attended 
for the first tirne nearly a month later, on July 23d. So certain were the 
small States of New Hampshire, that, during the session of June 30th, in 
the heat of debate on the question of equality, Mr. Brearly of New Jersey 
moved, according to Mr. Madison, " that the Presid*. write to the Executive 
of N. Hamshire, informing it that the business depending before the Con- 
vention was of such a nature as to require the immediate attendance of the 
deputies of that State. In support of his motion he observed that the diffi- 
culties of the subject and the diversity of opinions called for all the assist- 
ance we could possibly obtain." ^ This apparently was the reason advanced 
by Mr. Brearly. The reason undoubtedly uppermost in his mind is thus 
added by Mr. Madison in parenthesis by way of comment: 

It was well understood that the object was to add N. Hamshire to the 
n°. of States opposed to the doctrine of proportional representation, which it 
was presumed from her relative size she must be adverse to. 

Mr. Patterson of New Jersey, the proposer of the small State plan, 
seconded the motion. Mr. Rutledge of South Carolina, which ranged it- 
self with the large States, " could see neither the necessity nor propriety of 
such a measure. They are not unapprized of the meeting, and can attend 
if they choose. Rho. Island might as well be urged to appoint & send 
deputies. Are we to suspend the business until the deputies arrive? if we 
proceed he hoped all the great points would be adjusted before the letter 
could produce its effect." Mr. King, then of Massachusetts and later of 
New York, Senator of that State, Minister to England and candidate of 
the Federalist party for President, said " he had written more than oncg 
as a private correspondent, & the answers gave him every reason to expect 
that State would be represented very shortly, if it sh*^. be so at all. Cir- 
cumstances of a personal nature had hitherto prevented it. A letter c'^. have 
no effect." Mr. Wilson of Pennsylvania, likewise one of the large States, 
" wished to know whether it would be consistent with the rule or reason of 
secrecy, to communicate to N. Hampshire that the business w^as of such a 
nature as the motion described. It w^. spread a great alarm. Besides he 
doubted the propriety of solicitating any State on the subject; the meeting 
being merely voluntary." 

Admitting that these reasons were well taken, it is to be observed that 

^Documentary History, Vol. iii, p. 247. 



176 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the motion was made by a delegate of the State of New Jersey and seconded 
by a delegate of that State, and that all objections to the proposed course 
of action were made by delegates of the larger States, who hoped, as Mr. 
Rutledge bluntly put it, that " all the great points would be adjusted be- 
fore the letter could produce its effect." Rhode Island, which undoubtedly 
would have voted with the smaller States, was not represented, and on 
June 11th, Abraham Baldwin of Georgia, which State usually voted with 
the larger ones, arrived. And it is worth while mentioning that he was 
a native of Connecticut, as was Oliver Ellsworth, a member of the conven- 
tion from that State, who preferred to call it a middle rather than a small 
State. It is also noteworthy that Luther Martin of Maryland was, like 
Mr. Ellsworth, a graduate of Princeton College, and that both were 
partisans of equality. For whatever reason, Mr. Baldwin's vote on July 
2d in favor of equality neutralized the vote of his colleague against it.^ 
With Georgia thus eliminated as a State, since it voted neither in favor of 
nor against equality, the convention divided, five States for and five States 
against, which fact inclined the minds of the large States to compromise. 

Other members had privately done as Mr. King said he had done, and 
on the 9th of June, when Luther Martin, the champion of equality, took 
his seat, Mr. Brearly, Chief Justice of New Jersey, wrote to Jonathan Dayton, 
urging his presence, saying that " We have been in a Committee of the 
Whole for some time, and have under consideration a number of very im- 
portant propositions, none of which, however, have as yet been reported. 
My colleagues, as well as myself, are very desirous that you should join us 
immediately. The importance of the business really demands it." And it 
did.2 

On the 13th the Committee of the Whole reported the Randolph plan, 
amending and expanding the original fifteen to nineteen articles. The con- 
vention was ready to take them up and would doubtless have done so on. 
the morrow had not the smaller States then felt themselves sufficiently strong 
to take the initiative. Therefore, when the convention met on June 14,. 
1787, Mr. Patterson of New Jersey, to quote Mr. Madison's Notes, observed 

1 " It was Georgia that had changed. Her vote, hitherto regularly given to the majority, 
was this time divided. It was, in fact, one man only that had changed, and that man was 
Abraham Baldwin, a native of Connecticut, a graduate and sometime tutor of Yale, and but 
recently become a citizen of the state which he now sat for. The facts countenance a con- 
jecture that the personal influence of the three leading men of his native state may have 
helped to turn him ; but he may also have felt, as Georgia was the last state to vote, and had 
but two representatives, that he and his colleague had to decide whether the convention 
should continue in existence. He had said, that he thought the second branch ought to be 
an aristocratic body, and his votes, both before and after this particular division, show that 
he was favorable to the national view. The chances are that to save the convention he had 
for the time being sacrificed his own opinions." W. G. Brown, The Life of Oliver Ellsworth, 
p. 144. 

2 J. F. Jameson, Studies in the History of the Federal Convention, in the Annual Report 
of the American Historical Association for 1902, p. 98. 



CREATION OF THE FEDERAL LEGISLATURE 177 

" that it was the wish of several deputations, particularly that of N. Jersey, 
that further time might be allowed them to contemplate the plan reported from 
the Committee of the Whole, and to digest one purely federal, and contra- 
distinguished from the reported plan. He said they hoped to have such an 
one ready by tomorrow to be laid before the Convention: and the Con- 
vention adjourned that leisure might be given for the purpose." ^ Mr. 
Madison in later years added a comment to his notes, stating that " The 
eagerness displayed by the members opposed to a Nat'. Gov', from these 
different motives began now to produce serious anxiety for the result of 
the Convention. M^ Dickenson said to M''. Madison You see the con- 
sequence of pushing things too far. Some of the members from the small 
States wish for two branches in the General Legislature, and are friends to 
a good National Government ; but we would sooner submit to foreign power, 
than submit to be deprived of an equality of suffrage in both branches of the 
legislature, and thereby be thrown under the domination of the large States." ^ 
On the 15th Mr. Patterson presented his plan, which, he said, "several 
of the deputations wished to be substituted in place of that proposed by Mr. 
Randolph." After discussion it was decided that it should be laid before 
the Committee of the Whole, that Mr. Randolph's plan should be recom- 
mitted in order that the two should be compared, and the convention like- 
wise decided that it should not go into the Committee of the Whole until 
the day following, in order that the friends of the Patterson plan should 
be the better prepared to explain and support it and the members of the 
convention have the opportunity of providing themselves with copies. There- 
upon, Mr. Patterson moved nine resolutions, proposing 

1. That the Articles of Confederation be " revised, corrected & enlarged," J^^l^^^i^„ 
in order to render them " adequate to the exigencies of Government, & the 
preservation of the Union." 

2. That in addition to the powers already possessed, the United States 
in Congress assembled be authorized to raise revenue and to expend it for 
federal purposes by duties imposed on imports, stamps upon paper and letters 
and packages passing through the general post-office; to regulate commerce 
with foreign nations and with the States; also that suits for the violation 
of any such regulations be brought in the State courts with an appeal in law 
and fact to " the Judiciary of the U. States." 

3. That requisitions upon the States be made in proportion to the number 
of white and other free citizens, including inhabitants bound to servitude 
for a term of years and " three fifths of all other persons . . . except Indians 

^ Documentary History, Vol. iii, p. 123. 

2 The Journal of the Debates, Gaillard Hunt ed.. Vol. i, p. 138 note. 



178 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

not paying taxes " ; provided, however, that the consent of States 

be required for the exercise and enforcement of these powers. 

4. That a federal Executive be elected to consist of persons 
for a single term of years, to receive compensation for services 
not to be increased or diminished during the term of office, and subject to 
removal; that this Executive be authorized to carry out federal acts, to ap- 
point federal officers not otherwise provided for, and to direct military 
operations, without, however, commanding the army or navy. 

5. That a federal Judiciary be established to consist of a supreme tribunal 
composed of judges ineligible for other positions during service, appointed 
by the Executive to serve during good behavior, receiving fixed compensa- 
tion not subject to increase or diminution, possessing the jurisdiction in 
first instance of cases of impeachment of federal officers, and in dernier 
ressort of appeals in international matters affecting ambassadors, captures 
from the enemy, piracies and felonies committed on the high seas, cases in- 
volving foreigners, and the construction of treaties, " or which may arise on 
any of the Acts for regulation of trade, or the collection of the federal 
Revenue." 

6. That the acts of the Congress in accordance with the original and 
revised Articles of Confederation, and treaties made and ratified under the 
authority of the United States, be the supreme law of all the States, insofar 
as such acts or treaties relate to the citizens of the States, that the Judiciaries 
be bound thereby " any thing in the respective laws of the individual States 
to the contrary notwithstanding," and that the federal Executive be author- 
ized to use the power of the States " to enforce and compel an Obedience 
to such Acts, or an observance of such Treaties." 

7. That " provision be made for the admission of new States into the 
Union." 

8. That naturalization be uniform in every State. 

9. and last. That offenses committed in one State be tryable in any 
other State of the Union.^ 

It will be observed that this plan, although recognizing the threefold divi- 
sion of powers, is nevertheless to be looked upon as a revision of the Articles 
of Confederation, with important additions, not as a substitute for them. 
It was vigorously debated btit it found little favor with the partisans of 
the national plan, or indeed with those desiring to provide the Union with 
an adequate government, while preserving the rights of the States.^ On the 

^Documentary History, Vol. iii, pp. 125-8. 

- In the session of August 23d the question of granting power to negative State legisla- 
tion was revived by a motion of Mr. Pinckney. The diverging views of two delegates, as 
reported by Mr. Madison, are of interest: 

Mr. Wilson considered this as the keystone wanted to compleat the wide arch of 
Government we are raising. The power of self-defence had been urged as necessary for 



CREATION OF THE FEDERAL LEGISLATURE 179 

19th of June it was moved by M"". Kin^ of IMassachusetts " whether the 
Comittee should rise & M''. Randolphs propositions be re-reported without 
alteration, which," as Mr. Madison says. " was in fact a question whether JM^ 
R's should be adhered to as preferable to those of M'. Patterson " ; ^ on which 
question the States divided as follows: Massachusetts, aye; Connecticut, 
aye; New York, no; New Jersey, no; Pennsylvania, aye; Delaware, no; 
^Maryland, divided; Virginia, aye; North Carolina, a^-e; South Carolina, 
aye; Georgia, aye. 

The Randolph plan, as amended and altered in the committee, was there- 
fore reported to the convention and sen-ed as the basis of future discus- 
sion. The New Jersey plan, however, had served its turn. It had united 
the advocates of the States and made it clear that either Mr. Randolph's plan 
would prevail or that a compromise would have to be reached on middle 
ground. The attitude of the smaller States was accurately but somewhat 
brutally put by Mr. Pinckney, who is made by Mr. Madison to say that 
" the whole comes to this, as he conceived. Give N. Jersey an equal vote, 
and she will dismiss her scruples, and concur in the Nati'. system." ^ 

The Patterson plan as a whole out of the way, the discussion turned on 
the Randolph resolutions as modified in such a way as to give the States an 
equal representation in the second branch. The foundation had already been 
laid for this compromise by John Dickinson of Delaware, the possibility 
of such a solution adverted to by Roger Sherman of Connecticut, and with- Connecticut 
out attributing either the origin or the success of the project to the repre- 
sentatives of any State or any one person, the delegation of the State of 
Connecticut, which Oliver Ellsworth declared to be not a small but a middle 
State, seems to have occupied what may be called the strategic position. 
The conciliatory attitude of its members seemed inclined to produce concilia- 
tion, and from here on until the acceptance of the principle of equality Mr. 
Ellsworth seems to have played the leading role. Certain it is that the 
members of the Connecticut delegation not only assumed leadership and 
stated their views in such a way as to court concession from the larger 
States by showing themselves prepared to yield proportional representation 
in the first branch, but Mr. Ellsworth's motion of the 29th of June " that 
the rule of suffrage in the 2^. branch be the same with that established by 
the articles of confederation," ^ divided the States equally in the session of 

the State Governments — It was equally necessary for the General Government. The 
firmness of Judges is not of itself sufficient. ... It will be better to prevent the passage 
of an improper law, ihan to declare it void when passed. 

Mr. Rutlidge. If nothing else, this alone would damn and ought to damn the Con- 
stitution. Will any State ever agree to be bound hand & foot in this manner. It is 
worse than making mere corporations of them whose bye laws would not be subject to 
this shackle. Documentary History, Vol. iii, p. 602. 

^ Ibid., p. 162. 

'^ Ibid., p. 136. 3 /&/(f., p. 245. 



Proposal 



lot) THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

July 2d, leading to the appointment of a committee of one from each State 
to find a way out. This Committee of the States reported on July 5th the 
compromise ultimately adopted, that the principle of proportional representa- 
tion should prevail in the first branch; that, in the second, each State should 
have an equal vote, with the further provision that revenue bills should 
originate in the first branch and should not be altered or amended in the 
second, which latter provision was changed in the course of debate by per- 
mitting the Senate to alter but not to originate money bills. Or, as stated 
more at length in the report of Mr. Gerry, on behalf of the Committee : 

That the subsequent propositions be recommended to the Convention on 
condition that both shall be generally adopted. I. that in the 1^ branch of 
the Legislature each of the States now in the Union shall be allowed 1 member 
for every 40,000 inhabitants of the description reported in the 7"^ Resolu- 
tion of the Com®, of the whole House : that each State not containing that 
number shall be allowed 1 member : that all bills for raising or appropriating 
money, and for fixing the Salaries of the officers of the Govern', of the U. 
States shall originate in the P' branch of the Legislature, and shall not be al- 
tered or amended by the 2^ branch : and that no money shall be drawn from 
the public Treasury, but in pursuance of appropriations to be originated in the 
P' branch IL That in the 2^ branch each State shall have an equal vote.^ 

In the session of the 25th of June, Mr. Ellsworth urged " the necessity of 
maintaining the existence & agency of the States. Without their co-operation 
it would be impossible to support a Republican Gov*, over so great an extent 
of Country." ^ Dr. Johnson of Connecticut likewise urged " the necessity 
of preserving the State Gov*^ — which would be at the mercy of the Gen\ 
Gov*, on Mr. Wilson's plan " ; and on the question to agree " that the 
members of the 2^ branch be chosen by the individual Legislatures," nine 
States voted in its favor, with Pennsylvania and Virginia in the negative. 

Thus, Mr. Dickinson's original motion, which laid the basis for the 
compromise, was reaffirmed for the reason stated by Mr. Madison in a note 
that " the largest States particularly Pennsylvania & Virginia always con- 
sidered the choice of the 2^ Branch by the State Legislatures as opposed to 
a proportional representation to which they were attached as a fundamental 
principle of just Government. The smaller States who had opposite views, 
were reinforced by the members from the large States most anxious to secure 
the importance of the State Governments." ^ 

In reply to an elaborate and somewhat theoretical disquisition on gov- 
ernment by Mr. Madison in the session of the 28th, Mr. Sherman of Con- 
necticut curtly and correctly said: 

The question is not what rights naturally belong to men; but how they 

"^Documentary History, Vol, iii, p. 270. 

'i Ibid., -p. 210. 

^Journal of Debates, Hunt ed., Vol. i, p. 236 note. 



CREATION OF THE FEDERAL LEGISLATURE 181 

may be most equally & effectually guarded in Society. And if some give up ^/\?[|^ 
more than others in order to obtain this end, there can be no room for com- ° '^^^ 
plaint. To do otherwise, to require an equal concession from all, if it would 
create danger to the rights of some, would be sacrificing the end to the means. 
The rich man who enters into Society along with the poor man, gives up more 
than the poor man, yet with an equal vote he is equally safe. Were he to 
have more votes than the poor man in proportion to his superior stake the 
rights of the poor man would immediately cease to be secure. This con- 
sideration prevailed when the articles of Confederation were formed.^ 

Matters had come to such a pass that Dr. Franklin, immediately after Mr. 
Sherman's remarks, proposed that hereafter the session should open with 
prayer. On the 29th, Dr. Johnson carried the matter a step nearer agree- 
ment by a series of timely and well balanced remarks: 

The controversy must be endless whilst Gentlemen differ in the grounds of 
their arguments ; Those on one side considering the States as districts of peo- 
ple composing one political Society; those on the other considering them as 
so many political societies. The fact is the States do exist as political So- 
cieties, and a Gov', is to be formed for them in their political capacity, as well 
as for the individuals composing them. Does it not seem to follow, that if 
the States as such are to exist they must be armed with some power of self- 
defence. . . . On the whole he thought that as in some respects the States 
are to be considered in their political capacity, and in others as districts of in- 
dividual citizens, the two ideas embraced on different sides, instead of being 
opposed to each other, ought to be combined ; that in one branch the people, 
ought to be represented, in the other the States.' 

Later, in the same session, Dr. Johnson's colleague, Mr. Ellsworth, moved 
the proposition previously quoted, for equality of suffrage in the second 
branch, in accordance with the Articles of Confederation, and in support of 
his motion he is reported by Mr. Madison to have said : 

He was not sorry on the whole he said that the vote just passed, had de- 
termined against this rule in the first branch. He hoped it would become a 
ground of compromise with regard to the 2^. branch. We were partly na- 
tional; partly federal. The proportional representation in the first branch 
was conformable to the national principle & would secure the large States 
ag''. the small. An equality of voices was conformable to the federal prin- 
ciple and was necessary to secure the Small States ag^'. the large. He trusted 
that on this middle ground a compromise would take place. He did not see 
that it could on any other. And if no compromise should take place, our 
meeting would not only be in vain but worse than in vain. To the Eastward 
he was sure Mass'^ was the only State that would listen to a proposition for 
excluding the States as equal political Societies, from an equal voice in both 
branches. The others would risk every consequence rather than part with 
so dear a right. An attempt to deprive them of it, was at once cutting the 
body of America in two. and as he supposed would be the case, somewhere 
about this part of it. The large States he conceived would notwithstanding 

^ Documentary History, Vol. iii, p. 233. 
^ Ibid., p. 237. 



182 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the equality of votes, have an influence that would maintain their superiority. 
. . . The power of self defence was essential to the small States. Nature had 
given it to the smallest insect of the creation. He could never admit that 
there was no danger of combinations among the large States. They will 
like individuals find out and avail themselves of the advantage to be gained 
by it. . . . Let a strong Executive, a Judiciary & Legislative power be 
created ; but Let not too much be attempted ; by which all may be lost. He 
was not in general a half-way man, yet he preferred doing half the good we 
could, rather than do nothing at all. The other half may be added, when the 
necessity "shall be more fully experienced.^ 

On the 30th, Mr. Ellsworth's motion being under discussion, its mover 
thus replied to Mr. Wilson's " capital objection " that the minority would 
rule the majority: 

The power is given to the few to save them from being destroyed by the 
many. If an equality of votes had been given to them in both branches, the 
objection might have had weight. Is it a novel thing that the few should 
have a check on the many? . . . No instance of a Confederacy has existed 
in which an equality of voices has not been exercised by the members of it. 
We are running from one extreme to another. We are razing the founda- 
tions of the building. When we need only repair the roof. No salutary 
measure has been lost for want of a majority of the States, to favor it. If 
security be all that the great States wish for the P*. branch secures them. The 
danger of combinations among them is not imaginary. . . .^ 

After illustrating the possibility of this he appealed, again to quote Mr. 
Madison, " to the obligations of the federal pact which was still in force, 
and which had been entered into with so much solemnity, persuading him- 
self that some regard would still be paid to the plighted faith under which 
each State, small as well as great, held an equal right of suffrage in the 
general Councils. His remarks were not the result of particular or local 
views. The State he represented (Connecticut) held a middle rank." * 

In the course of this debate, which was largely between Messrs. Ells- 
worth and Madison, Dr. Franklin interposed, saying : 

The diversity of opinions turns on two points. If a proportional represen- 
tation takes place, the small States contend that their liberties will be in dan- 
ger. If an equality of votes is to be put in its place, the large States say that 
their money will be in danger. When a broad table is to be made, and the 
edges of planks do not fit, the artist takes a little from both, and makes a good 
joint. In Hke manner here both sides must part with some of their demands, 
in-order that they may join in some accommodating proposition.* 

This was indeed an olive branch from a large State, and the necessity for 
a compromise, which Dr. Franklin suggested, was made evident by the re- 

^ Documentary History, Vol. iii, pp. 245-7. 
2 Ibid., pp. 251-2. 
^ Ibid., p. 252. 
*Ibid.,p.257. 



CREATION OF THE FEDERAL LEGISLATURE 183 

marks of Mr. Bedford of Delaware, who, to quote Mr. Madison's report, 
" contended that there was no middle way between a perfect consolidation 
and a mere confederacy of the States. The first is out of the question, and 
in the latter they must continue if not perfectly, yet equally sovereign. If 
political Societies possess ambition, avarice, and all the other passions which 
render them formidable to each other, ought we not to view them in this light 
here? Will not the same motives operate in America as elsewhere? If any 
gentleman doubts it let him look at the votes. Have they not been dictated 
by interest, by ambition? Are not the large States evidently seeking to 
aggrandize themselves at the expense of the small? They think no doubt 
that they have right on their side, but interest had blinded their eyes. 
Look at Georgia. Though a small State at present, she is actuated by the 
prospect of soon being a great one. S. Carolina is actuated both by present in- 
terest & future prospects. She hopes too to see the other States cut down to 
her own dimensions. N. Carolina has the same motives of present & future 
interest. Virg". follows. Mary^. is not on that side of the Question. Pen^. 
has a direct and future interest. Mass'^ has a decided and palpable interest 
in the part she takes. Can it be expected that the small States will act from 
pure disinterestedness." ^ After appealing to experience, Mr. Bedford thus 
continued : 

Give the opportunity, and ambition will not fail to abuse it. The whole 
History of mankind proves it. The three large States have a common in- 
terest to bind them together in commerce. But whether combination as we 
suppose, or a competition as others suppose, shall take place among them, 
in either case, the smaller States must be ruined. We must like Solon make 
such a Govern^ as the people will approve. Will the smaller States ever 
agree to the proposed degradation of them. 

After calling attention to the fact that all were agreed that the powers of 
Congress should be enlarged in order that it could meet its obligations, and 
after adding that the little States were willing to comply with their en- 
gagements, but only if the principle of equality be observ^ed, he proceeded 
in language which caused no little commotion among the delegations on 
behalf of the large as well as of the small States: 

We have been told with a dictatorial air that this is the last moment for a 
fair trial in favor of a Good Governm'. It will be the last indeed if the propo- 
sitions reported from the Committee go forth to the people. He was under 
no apprehensions. The Large States dare not dissolve the confederation. 
If they do the small ones will find some foreign ally of more honor and good 
faith, who will take them by the hand and do them justice. He did not mean 
by this to intimidate or alarm. It was a natural consequence ; which ought 
to be avoided by enlarging the federal powers not annihilating the federal 

1 Documentary History, Vol. iii, pp. 259-260. 



184 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

system. This is what the people expect. All agree in the necessity of a 
more efficient Gov*, and why not make such an one ; as they desire. 

Whereupon Mr. Ellsworth, in a more conciliatory and persuasive, yet hardly 
less decided way, said: 

Under a National Gov*, he should participate in the National Security, as 
remarked by (Mr. King) but that was all. What he wanted was domestic 
happiness. The Nat^ Gov', could not descend to the local objects on which 
this depended. It could not embrace objects of a general nature. He turned his 
eyes therefore for the preservation of his rights to the State Gov*^ From 
these alone he could derive the greatest happiness he expects in this life. His 
happiness depends on their existence, as much as a new-born infant on its 
mother for nourishment. If this reasoning was not satisfactory, he had 
nothing to add that could be so.^ 

Under these circumstances, the convention adjourned on Saturday, June 
30th, and after an interval of a day in which to reflect, met on July 2d. The 
Sunday was indeed a godsend to the small States, for when the Convention 
adjourned on Monday, July 2d, the vote upon Mr. Ellsworth's motion was 
had, resulting in a tie, Massachusetts, Pennsylvania, Virginia, North 
Carolina, and South Carolina voting against, Connecticut, New York (then 
considered one of the smaller States), New Jersey, Delaware, and Mary- 
land voting for, with Georgia divided. Mr. Ellsworth's friendship with Mr. 
Baldwin had borne its fruit. Whereupon, General Charles Cotesworth 
Pinckney, a man of large experience and of broad views, although as set 
upon the rights of his State as any man could be, said that " some compro- 
mise seemed to be necessary: the States being exactly divided on the ques- 
tion for an equality of votes in the 2^. branch. He proposed that a Com- 
mittee consisting of a member from each State should be appointed to de- 
vise & report some compromise." ^ 

Doubtless General Pinckney's motion appealed to the good sense of his 
colleagues open to conviction, for, as Mr. Sherman said, the Convention 
was " now at a full stop, and nobody he supposed meant that we sh^. break 
up without doing something. A Committee he thought most likely to hit 
on some expedient." ^ Dr. Williamson of North Carolina, whose State had 
voted against equality, added that " If we do not concede on both sides, our 
business must soon be at an end." He favored the commitment, " supposing 
that as the Com^. w^. be a smaller body, a compromise would be pursued 
with more coolness." ^ Mr. Gerry of Massachusetts, later to be Vice Presi- 
dent with Mr. Madison as President of the United States, likewise was for 
the commitment, saying, " Something must be done, or we shall disap- 

'^ Documentary History, Vol. iii, p. 261. 

2 Ibid., p. 264. 

3 Ibid. 

* Ibid., p. 268. 



CREATION OF THE FEDERAL LEGISLATURE 185 

point not only America, but the whole world." He suggested a considera- 
tion of the state " we should be thrown into by the failure of the Union. We 
should be without an Umpire to decide controversies and must be at the 
mercy of events. What too is to become of our treaties — what of our 
foreign debts, what of our domestic? We must make concessions on both 
sides. Without these the constitutions of the several States would never have 
been formed." ^ 

So the question was debated, decided in the affirmative, and the com- 
mittee, elected by ballot, consisted of Messrs. Gerry, Ellsworth, Yates, Patter- 
son, Franklin, Bedford, Martin (of Maryland), Mason, Davie, Rutledge, and 
Baldwin. " That time might be given to the Comittee, and to such as chose 
to attend to the celebration on the anniversary of Independence, the Conven- 
tion adjourned till Thursday." ^ 

On Thursday, July 5th, the committee reported the compromise whose 
terms had properly been suggested by Dr. Franklin.^ The report was de- 
bated from every point of view and amended in certain particulars that 
need not detain us; and on July 16, 1787, the convention adopted it as 
amended, including, as Mr. Madison says, " the equality of votes in the 2^. 
branch," * Connecticut, New Jersey, Delaware, Maryland, North Carohna, 
voting for, Pennsylvania, Virginia, South Carolina and Georgia against, 
Massachusetts divided. New York absent and New Hampshire not as yet rep- 
resented, both of which States would have voted for the compromise. 

The irritation of the larger States upon the victory of the smaller was victory 
voiced by Mr. Randolph, who, stating that it would be " in vain to come l"^^^'^^'" 
to any final decision with a bare majority on either side," wished " the Con- 
vention might adjourn, that the large States might consider the steps proper 
to be taken in the present solemn crisis of the business, and that the small 

1 Documentary History, Vol. iii, p. 269. 

2 Ibid., pp. 269-270. 

8 fbid., p. 270. " Tuesday, July 3, 1787. 

"The grand committee met. Mr. Gerry was chosen chairman. 

" The committee proceeded to consider in what manner they should discharge the busi- 
ness with which they were intrusted. By the proceedings in the Convention, they were so 
equally divided on the important question of representation in the tiuo branches, that the 
idea of a conciliatory adjustment must have been in contemplation of the house in the ap- 
pointment of this committee. But still, how to effect this salutary purpose was the question. 
Many of the members, impressed with the utility of a general government, connected with 
it the indispensable necessity of a representation from the states according to their num- 
bers and ivcalth; while others, equally tenacious of the rights of the states, would admit of 
no other representation but such as t^'as strictly federal, or, in other words, equality of suf- 
frage. This brought on a discussion of the principles on which the house had divided, and a 
lengthy recapitulation of the arguments advanced in the house in support of these opposite 
propositions. As I had not openly explained my sentiments on any former occasion on this 
question, but constantly, in giving my vote, sliozved my attachment to the national govern- 
ment on federal principles, I took this occasion to explain >ny motives. 

" These remarks gave rise to a motion of Dr. Franklin, which after some modification 
was agreed to, and made the basis of the following report of the Committee." Yates, 
Secret Proceedings, p. 205. 

* Documentary History, Vol. iii, p. 343. 



186 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

States might also deliberate on the means of conciliation." ^ The smaller 
States, however, had carried their point, and while they were willing to 
adjourn they were in no disposition to reconsider. Indeed, Mr. Patterson 
of New Jersey, as reported by Mr. Madison, " thought with M''. R. that 
it was high time for the Convention to adjourn that the rule of secrecy 
ought to be rescinded, and that our Constituents should be consulted. No 
conciliation could be admissible on the part of the smaller States on any 
other ground than that of an equality of votes in the 2*. branch. If M^ 
Randolph would reduce to form his motion for an adjournment sine die, he 
would second it with all his heart." Mr. Randolph explained that he did 
not mean to move adjournment sine die, but until the morrow " in order 
that some conciliatory experiment might if possible be devised, and that in 
case the smaller States should continue to hold back, the larger might then 
take such measures, he would not say what, as might be necessary." Mr. 
Patterson, being in an obliging spirit, seconded the adjournment, " till to- 
morrow, as an opportunity seemed to be wished by the larger States to 
deliberate further on conciliatory expedients." On the question of adjourn- 
ment the States divided equally, and the convention adjourned; but before 
doing so, they tied once on the question, and the frame of mind of the con- 
vention as well as of the delegations from the larger States is perhaps to be 
gathered from the following remarks of Mr. Rutledge, who, according to 
Mr. Madison, " could see no need of an adjourn\ because he could see no 
chance of a compromise. The little States were fixt. They had repeatedly 
& solemnly declared themselves to be so. All that the large States then had 
to do, was to decide whether they would yield or not. For his part he con- 
ceived that altho' we could not do what we thought best, in itself, we ought 
to do something. Had we not better keep the Gov', up a little longer, hoping 
that another Convention will supply our omissions, than abandon every thing 
to hazard. Our Constituents will be very little satisfied with us if we 
take the latter course." ^ 

The members from the larger States were apparently in a sorry plight. 
They could not break up the Convention on the ground that they were un- 
willing to compromise, they could not admit that they were outgeneraled 
by the little States, they could not form a Confederation composed of them- 
selves, because they were not contiguous, and even large bricks require mortar 
to hold together. The situation is thus stated in a passage from Mr. Madi- 
son's Notes, interposed between the adjournment after the vote and before the 
meeting of the 17th: 

On the morning following before the hour of the Convention a number of 

''^Documentary History, Vol. iii, pp. 345-6. 
2 Ibid., p. 347. 



CREATION OF THE FEDERAL LEGISLATURE 187 

the members from the larger States, by common agreement met for the pur- The First 
pose of consulting on the proper steps to be taken in consequence of the vote promLe"'"' 
in favor of an equal Representation in the 2^ branch, and the apparent in- 
flexibility of the smaller States on that point — Several members from the lat- 
ter States also attended. The time was wasted in vague conversation on the 
subject, without any specific proposition or agreement. It appeared indeed 
that the opinions of the members who disliked the equality of votes differed 
so much as to the importance of that point, and as to the policy of .risking a 
failure of any general act of the Convention by inflexibly opposing it. Sev- 
eral of them supposing that no good Governm'. could or would be built on 
that foundation, and that as a division of the Convention into two opinions 
was unavoidable it would be better that the side comprising the principal 
States, and a majority of the people of America, should propose a scheme 
of Gov*, to the States, than that a scheme should be proposed on the other 
side, would have concurred in a firm opposition to the smaller States, and in a 
separate recommendation, if eventually necessary. Others seemed inclined 
to yield to the smaller States, and to concur in such an Act however imper- 
fect & exceptionable, as might be agreed on by the Convention as a body, 
tho' decided by a bare majority of States and by a minority of the people of 
the U. States. It is probable that the result of this consultation satisfied 
the smaller States that they had nothing to apprehend from a Union of the 
larger, in any plan whatever ag^'. the equality of votes in the 2^. branch.^ 

So much for the first compromise, which made the proposed Constitu- sec*^,„<i 
tion probable. Next, for the second compromise, which made it a fact. Compromise 
And it is interesting to note that the second, like the first, deals with the 
question of suffrage, although it is confined to the first branch, involving 
questions of interest to the States as such. The compromise involved one 
member of Congress for every forty thousand inhabitants of the State, 
divided into districts popularly called Congressional Districts. The southern 
States, in which slavery prevailed, insisted that the slaves should be counted 
among the inhabitants, Mr. Butler and General Pinckney of South Carolina 
going so far as to insist that they should be " included in the rule of Repre- 
sentation equally with the whites," ^ whereas, after much misgiving, the dele- 
gations of the other States were willing to allow five negroes to be counted 
as three for the purpose of votes in such States Avhere slavery existed, on 
the ground that such a proportion had been approved by eleven of the States 
in the Congress of 1783.^ Again, the southern States insisted vipon the 
right to continue the slave trade, at least for a period of twenty years, which 
was very galling to the members of the States where slavery did not exist 
and distasteful to some of the members of the slave States.'' It happened, 

1 Documentary History, Vol. iii, pp. 347-8. 

2 Ibid., p. 308. Session of July 11th. 
^Ibid., p. 323. Session of July 12th. 

*Mr. Tiiadison expressed the following opinion: 

Twenty years will produce all the mischief that can be apprehended from the 

liberty to import slaves. So long a term will be more dishonorable to the National 

character than to say nothing about it in the Constitution. Ibid., p. 616. 
During the same session (that of August 25th) Mr. Madison stated that he " thought it 



188 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

and this is the ground for the second compromise, that the southern States, 
producing products for exportation, were anxious to prevent regulations of 
commerce which would enable the Congress to do so by a mere majority, 
wishing a two-thirds vote in such cases for their protection. The eastern 
States, under the lead of Massachusetts, were unwilling to consent to this, 
as they were commercial States and changes in the regulations proving de- 
sirable would be very difficult if a two-thirds vote were required. 

The opposition of the States to a tax upon their exports was met by a 
provision that no tax or duty should be laid on articles exported from any 
State, but the commercial States were unwilling to be bound hand and foot, 
as they thought they would be, by a two-thirds vote on the part of the 
legislature to regulate commerce, Mr. Gorham of Massachusetts saying on thisi 
very question that " He desired it to be remembered that the Eastern States 
had no motive to Union but a commercial one. They were able to protect 
themselves. They were not afraid of external danger and did not need thej 
aid of the South". States." ^ 

Section 6, Article VII, of the draft of the Constitution as reported on 
August 6th, provided that, " No navigation act shall be passed without the 
assent of two thirds of the members present in each House." ^ At the session 
of August 22d this clause was, together with that relating to the importation 
of slaves, referred to a committee composed of a member from every State, 
which recommended two days later that the importation of slaves, euphemisti- 
cally called " such persons as the several States now existing shall think proper 
to admit," be not prohibited prior to the year 1800, but that a tax upon mere 
migration or importation might be laid, and that Section 6, requiring a two- 
thirds vote for a navigation act, be omitted.^ On August 29th the report of 
this committee on the question of navigation came up for discussion. When 
the report was presented, Mr. Pinckney of South Carolina moved to insert 
the two-thirds requirement, which had been omitted by the committee, and 
in support of this motion remarked, as reported by Mr. Madison, that there 
were five distinct commercial interests: " 1. the fisheries & W. India trade, 
which belonged to the N. England States. 2. the interest of N. York lay 
in a free trade. 3. Wheat & flour the Staples of the two middle States, 
(N. J. & Penn^)— 4. Tob", the staple of Mary''. & Virginia & partly of 
N. Carolina. 5. Rice & Indigo, the staples of S. Carolina & Georgia. These 
different interests would be a source of oppressive regulations if no check 
to a bare majority should be provided. States pursue their interests with 
less scruple than individuals. The power of regulating commerce was a 

wrong to admit in the Constitution the idea that there could be property in men." Docu- 
mentary History, Vol. iii, p. 618. 

1 Ibid., p. 591. Session of August 22d. 

2 Ibid., p. 450. 

3 Ibid., p. 606. 



CREATION OF THE FEDERAL LEGISLATURE 189 

pure concession on the part of the S. States. They did not need the protec- 
tion of the N. States at present." ^ To this statement General Pinckney, 
Hkewise of South Carolina, added that " it was the true interest of the 
S. States to have no regulation of commerce ; but considering the loss brought 
on the commerce of the Eastern States by the revolution, their liberal con- 
duct towards the views of South Carolina, and the interest the weak South". 
States had in being united with the strong Eastern States, he thought it 
proper that no fetters should be imposed on the power of making commer- 
cial regulations; and that his constituents though prejudiced against the 
Eastern States, would be reconciled to this liberality — He had himself, he 
said, prejudices ag^'. the Eastern States before he came here, but would 
acknowledge that he had found them as liberal and candid as any man 
whatever." The liberality and candor of South Carolina to which General 
Pinckney referred are thus stated by Mr. Madison in a note of later date : 

He [General Pinckney] meant the permission to import slaves. An un- 
derstanding on the two subjects of navigation and slavery, had taken place 
between those parts of the Union, which explains the vote on the Motion de- 
pending, as well as the language of Gen'. Pinkney & others.* 

In the course of the very interesting debate which ensued, the delegates 
of the States supposed to be affected by the two-thirds recjuirement, or by a 
navigation law of any kind, laid the views of their States before the Con- 
vention with commendable frankness. Mr. Butler of South Carolina, for 
example, speaking for the southern States, said that " he considered the in- 
terests of these and of the Eastern States, to be as different as the interests 
of Russia and Turkey." But nevertheless, " desirous of conciliating the affec- 
tions of the East: States," he said he should vote against the two-thirds re- 
quirement instead of a majority.^ Mr. Mason of Virginia, bitterly opposed 
to slavery and its recognition in the Constitution, said : 

If the Gov', is to be lasting, it must be founded in the confidence & af- 
fections of the people, and must be so constructed as to obtain these. The 
Majority will be governed by their interests. The Southern States are the 
minority in both Houses. Is it to be expected that they will deliver them- 
selves bound hand & foot to the Eastern States, and enable them to exclaim, 
in the words of Cromwell on a certain occasion — " the lord hath delivered 
them into our hands." 

So much for the views of the southern States, to which Mr. Gorham, who 
had already expressed himself on the subject, replied: 

If the Government is to be so fettered as to be unable to relieve the Eastern 

''■Documentary History, Vol. iii, pp. 636-7. 

2 Ibid.: p. 637. 

Ubid.,p.639. 



190 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

States what motive can they have to join it, and thereby tie their own hands 
from measures which they could otherwise take for themselves. T.he East- 
ern States were not led to strengthen the Union by fear for their own safety. 
He deprecated the consequences of disunion, but if it should take place it 
was the Southern part of the Continent that had the most reason to dread 
them. He urged the improbability of a combination against the interest of 
the Southern States, the different situations of the Northern & JNIiddle States 
being a security against it. It was moreover certain that foreign ships would 
never be altogether excluded especially those of Nations in treaty with us.^ 

The question had become one of Union or no Union, the Constitution 
or no Constitution, and as the eastern and southern States had reached an 
understanding there appeared nothing for the delegates of the northern and 
middle States to do but to confirm that understanding, or to renounce the 
attempt to unite. Indeed, the delegates appear to have been so impressed 
with the necessity of this that the report of the committee eliminating the 
requirements of " two thirds of each House to pass a navigation act " was, 
as Mr. Madison says, " then agreed to, nem : con : " 

As a result of these two compromises, which have been stated at some 
length, the obstacles in the way of a Constitution of the kind proposed in 
the Randolph resolutions were circumvented if they were not wholly re- 
moved; and the concessions upon which the compromises were based ap- 
pear to have been not concessions of the members as such, nor of the people 
as such, but of the States, represented in their political capacity, in the matter 
of equality; and of the States in the second compromise, or of the interests 
of the people of the different States, to be affected, on the one hand, by 
slavery, and by navigation laws on the other. 
Legfs-"* It will be observed that the question, and therefore the compromise, in 

Powlr each case related to the legislative branch of the proposed government. 

In comparison with these questions, the powers to be granted to the legisla- 
tive department were matters of detail, for it was generally agreed that 
this department should possess the powers granted to the Congress by the 
Articles of Confederation and certain added powers in order to render the 
proposed government adequate to the exigencies of the Union. Two of 
these powers were admittedly those to impose taxes in order to raise a 
revenue, and to regulate commerce with foreign nations and among the 
States themselves. 

Two points are to be observed in this connection, that the grant of legis- 
lative powers was not general, as in the case of the Judiciary, by virtue 
whereof the judicial power of the United States is vested in a Supreme 
and inferior courts, the Constitution saying, in regard to the legislature, 
that all legislative powers herein granted " shall be vested in the Congress 

^Documentary History, Vol. Hi, pp. 641-2. 



CREATION OF THE FEDERAL LEGISLATURE 191 

of the United States," to consist of a Senate and House of Representatives. 
As, therefore, the Union did not exist of itself but had to be created, and 
as the government of this Union, composed of three branches, had Hkewise 
to be created by the States, which already existed, it follows that the legis- 
lative department could possess only such powers which the delegates of 
the States, subsequently confirmed by conventions of the States, granted 
either directly or by necessary implication to the legislative department of the 
government of the Union. 

But the powers granted are wisely enumerated in general terms, leaving 
the Congress free to exercise its discretion in the choice of means to carry 
out the powers expressly or impliedly granted, and the legislature as well as 
the Supreme Court has never forgotten, the one in passing laws, the other 
in interpreting and applying them, that each was dealing with a Constitu- 
tion. 

The second observation is that the powers were to be exercised in such 
a way as, to quote the language of Section 8 of Article I of the completed 
Constitution, " to provide for the common defense and general welfare of 
the United States," and, within the express or implied grant of powers for 
this great purpose, " to make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all other powers vested 
in this Constitution in the government of the United States or any depart- 
ment or officer thereof." 



IX 
CREATION OF THE EXECUTIVE 

But because the Laws, that are at once, and in a short time made, have a constant and 
lasting Force, and need a perpetual Execution, or an attendance thereunto: Therefore 
'tis necessary there should be a Pozuer always in Being, which should see to the Execution 
of the Laws that are made, and remain in Force. And thus the Legislative and Executive 
Power come often to be separated. {John Locke, Two Treaties of Government, 1690, Book 
II, Ch. XI ly Section 144, Works, edition of 17 14, Vol. II.) 

Section \. The executive Power shall be vested in a President of the United States of 
America. He shall hold his Office during the Term of four Years, and, together with the 
Vice President, chosen for the same Term, be elected, as follows . . . 

Before he enter on the Execution of his Office, he shall take the following Oath or 
Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of 
President of the United States, and will to the best of my Abihty, preserve, protect and 
defend the Constitution of the United States." 

Section 2. ... 

He shall have Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two thirds of the Senators present concur ; and he shall nominate, and 
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public 
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United 
States, whose Appointments are not herein otherwise provided for, and which shall be 
established by Law : but the Congress may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in the Courts of Law, or in the 
Heads of Departments. . . . 

Section 3. He shall from time to time give to the Congress Information of the State 
of the Union, and recommend to their Consideration such Measures as he shall judge 
necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or 
either of them, and in Case of Disagreement between them, with Respect to the Time of 
Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive 
Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully exe- 
cuted, and shall Commission all the Officers of the United States. 

Section 4. The President, Vice President and all civil Officers of the United States, 
shall be removed from Office on Impeachment for, and Conviction of. Treason, Bribery, or 
other high Crimes and Misdeameanors. {Constitution of the United States, Article II.) 

Soon after the adjournment of the federal Convention some one said to Benjamin 
Franklin, "Well, Doctor, have you given us a republic or a monarchy?" Franklin re- 
plied, " A republic, if you can keep it." {Andrew C. McLaughlin, The Courts, The Con- 
stitution and Parties, 1912, p. 151.) 

By the constitution of the United States, the President is invested with certain impor- 
tant political powers, in the exercise of which he is to use his own discretion, and is 
accountable only to his country in his political character, and to his own conscience. . . . 
The subjects are political. They respect the nation, not individual rights, and being en- 
trusted to the executive, the decision of the executive is conclusive. ... 

The province of the court is, solely, to decide on the rights of individuals not to enquire 
how the executive, or executive officers, perform duties in which they have a discretion. 
Questions, in their nature political, or which are, by the constitution and laws, submitted to 
the executive, can never be made in this court. {Chief lustice Marshall in Marbury v. 
Madison, 1 Cranch, 137, 163-166, 170, decided in 1803.) 

These orders, given by the executive, under the construction of the act of congress made 
by the department to which its execution was assigned, enjoin the seizure of American 
vessels sailing from a French port. Is the officer who obeys them liable for damages sus- 
tained by this misconstruction of the act, or will his orders excuse him? If his instructions 
afford him no protection, then the law must take its course, and he must pay such damages 
as are legally awarded against him ; . . . 

... I was strongly inclined to think, that where, in consequence of orders from the 

192 



CREATION OF THE EXECUTIVE 193 

legitimate authority, a vessel is seized, with pure intention, the claim of the injured party 
for damages would be against that government from which the orders proceeded, and 
would be a proper subject for negotiation. But I have been convinced that I was mistaken, 
and I have receded from this first opinion. I acquiesce in that of my brethren, which, is, 
that the instructions cannot change the nature of the transaction, nor legalize an act which, 
without those instructions, would have been a plain trespass. {Chief Justice Marshall in 
The Flying Fish, 2 Cranch, 170, 178, 179, decided in 1804.) 

There is another feature common to both governments. In England the king has his 
constitutional counsellors and councils. The peers of the realm are, by their birth, heredi- 
tary counsellors of the crown ; and may be called together by the king to impart their ad- 
vice, [4 Bl. Com.] 227. The judges are a council for law matters, 229. But the principal 
council is the privy council, and by way of eminence is called the council, 229. So the pres- 
ident has his councils. "He may require the opinion in writing of the principal officer at 
the head of each of the executive departments," &c. 2 Sec. 2 Art, Clause 2, Const. This is 
called a cabinet council; it is a prizy council, in which the president is present, as the king is in 
person in his. 4 Bl. Com. 231. The senate is the council in making treaties, in advising 
and consenting to appointments to office. Senators are not, ex officio, counsellors indi- 
vidually; but the president "may convene both houses, or either of them." {Mr. Justice 
Baldzvin, A General Viezv of the Origin and Nature of the Constitution and Government 
of the United States, 1837, p. 56.) 

It is believed to be one of the chief merits of the American system of written constitu- 
tional law, that all the powers intrusted to government, whether State or national, are 
divided into the three grand departments, the executive, the legislative, and the judicial. 
That the functions appropriate to each of these branches of government shall be vested in 
a separate body of public servants, and that the perfection of the system requires that the 
lines which separate and divide these departments shall be broadly and clearly defined. 
It is also essential to the successful working of this system that the persons intrusted with 
power in any one of these branches shall not be permitted to encroach upon the powers 
confided to the others, but that each shall by the law of its creation be limited to the exer- 
cise of the powers appropriate to its own department and no other. To these general 
propositions there are in the Constitution of the United States some important exceptions. 
One of these is, that the President is so far made a part of the legislative power, that his 
assent is required to the enactment of all statutes and resolutions of Congress. 

This, however, is so only to a limited extent, for a bill may become a law notwithstand- 
ing the refusal of the President to approve it, by a vote of two-thirds of each House of 
Congress. 

.So, also, the Senate is made a partaker in the functions of appointing officers and mak- 
ing treaties, which are supposed to be properly executive, by requiring its consent to the 
appointment of such officers and the ratification of treaties. The Senate also exercises the 
judicial power of trying impeachments, and the House of preferring articles of impeachment. 

In the main, however, that instrument, the model on which are constructed the funda- 
mental laws of the States, has blocked out with singular precision, and in bold lines, in its 
three primary articles, the allotment of power to the executive, the legislative, and the 
judicial departments of the government. It also remains true, as a general rule, that the 
powers confided by the Constitution to one of these departments cannot be exercised by 
another. 

It may be said that these are truisms which need no repetition here to give them force. 
But while the experience of almost a century has in general shown a wise and commend- 
able forbearance in each of these branches from encroachments upon the others, it is not 
to be denied that such attempts have been made, and it is believed not always without suc- 
cess. The increase in the number of States, in their population and wealth, and in the 
amount of power, if not in its nature to be exercised by the Federal government, presents 
powerful and growing temptations to those to whom that exercise is intrusted, to overstep 
the just boundaries of their own department, and enter upon the domain of one of the 
others, or to assume powers not intrusted to either of them. {Mr. Justice Miller in Kil- 
bourn v. Thompson, 103 United States Reports, 168, igo, 192, decided in 1880.) 

But the principle of definition and limitation of powers harmonises so well with the 
federal spirit that it is generally carried much farther than is dictated by the mere logic of 
the constitution. Thus the authority assigned to the United States under the Constitution 
is not concentrated in any single official or body of officials. The President has definite 
rights, upon which neither Congress nor the judicial department can encroach. {.4Ibert 
Venn Dicey, Introduction to the Study of the Laiv of the Constitution, 1883, 8th edition, 
19 15, PP- 148-149-) 



CHAPTER IX 

CREATION OF THE EXECUTIVE 

It was not by chance that Mr. Randolph's resolutions began with the 
legislative department and it need occasion no surprise that the question of 
powers to be granted to this department of the proposed Government was the 
subject of prolonged debate and the grant itself the result of concession and 
compromise. The lack of power on the part of Congress to raise revenue, to 
maintain the government under the Articles of Confederation, and to regulate 
commerce with foreign nations and among the States was the cause of the 
convention, and this part of the plan would have been discussed and decided, 
as it was, if Mr. Randolph's resolutions had ended instead of beginning with 
the legislative department. But the fundamental question at issue was the 
definition of power. In comparison, the exercise of this power by an executive 
and indeed even the interpretation of the power were minor matters. Without 
the grant there could be no exercise of the power, there could be no interpreta- 
tion, there could be no Constitution. 

However a second branch of the proposed government was, according to 
the theory of the division of powers, the executive. Mr. Randolph's proposi- 
tions contained in the seventh and eighth of his resolutions, provide respec- 
tively : 

7. Res^. that a National Executive be instituted ; to be chosen by the Na- 
tional Legislature for the term of years, to receive punctually at stated 
times, a fixed compensation for the services rendered, in which no increase or 
diminution shall be made so as to affect the Magistracy, existing at the time 
of increase or diminution, and to be ineligible a second time ; and that besides 
a general authority to execute the national laws, it ought to enjoy the Execu- 
tive rights vested in Congress by the Confederation. 

8. Res^. that the Executive and a convenient number of the National 
Judiciary, ought to compose a Council of revision with authority to examine 
every act of the National Legislature before it shall operate, & every act of a 
particular Legislature before a Negative thereon shall be final ; and that the 
dissent of the said Council shall amount to a rejection, unless the Act of the 
National Legislature be again passed, or that of a particular Legislature be 
again negatived by of the members of each branch.^ 

There appears to have been no objection on the part of any member to 

1 Documentary History of the Constitution, Vol. iii, pp. 18-19. Session of May 29th. 

194 



CREATION OF THE EXECUTIVE 195 

the institution of an executive department which should possess at least the 
rights " vested in Congress by the Confederation." A difference of opinion 
existed, however, as to whether the executive should consist of one person or 
a number; as to the period during which the executive should hold office; the 
eligibility of the incumbent to reelection; the method of choice and the powers 
which the executive should possess. 

It would seem that Mr. Randolph, who stood sponsor for the resolutions 
which bear his name, although the authorship thereof is popularly accredited to 
Mr. Madison, was in favor of a plural executive representing the different sec- 
tions of the Union. The New Jersey plan laid before the convention on June 
15th specified "a federal Executive to consist of persons, 

convention, however, decided, and wisely, in favor of a single executive. 

It will be observed that in each plan the executive was to be elected by the 
national legislature. The first draft of the Constitution as reported on August 
^h, provided, in the first section of its tenth article that, " the Executive 
Power of the United States shall be vested in a single person. His stile shall 
be 'The President of the United States of America'; and his title shall be, 
' His Excellency.' He shall be elected by ballot by the Legislature. He shall 
hold his office during the term of seven years ; but shall not be elected a second 
time." ^ 

Although every other clause of the section was modified, the convention 
stood fast by the single executive, as the great desire of the delegates was to 
maintain, as a cardinal principle of the proposed scheme of government, a 
separation of powers, and therefore to make the president independent of the 
other departments of government. It was understood that the president was 
to be an elective officer ; and as far as known, there was not made at any time 
a proposition for an hereditary executive. It was felt by some members that 
he should be elected for a fixed number of years and be ineligible to reelection. 
Those favoring his election by the national legislature were, as a rule, op- 
posed to reelection and in favor of a longer term in order that his dependence 
upon the legislature might not be too close or too apparent. Those opposing 
the choice by the legislature appear to have favored a short term with the pos- 
sibility of reelection. It is thus seen that these questions were interrelated 
not separate and distinct. Without pausing to trace the steps by which an 
agreement was reached upon the presidency, it will suffice to say that the term 
was fixed at a period of four years, subject to reelection. There is no provi- 
sion in the Constitution preventing a president from being reelected for 
periods of four years throughout his natural lifetime. General Washington's 
refusal to stand a third time set a precedent followed by Messrs. Jefferson and 

^Documentary History, Vol. iii, p. 126. 
^ Ibid., p.' 453. 



196 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Jackson, who might have been elected for a third term, and has estabUshed a 
System^' custom hitherto unbroken. Finally, as the result of much discussion, and of 

many propositions made only to be rejected, it was agreed that the president 
should be elected neither by the legislature, by the Congress, by the people, nor 
by the States, and yet that he should be elected by a method which suggests each 
of these. Thus, a number of persons called electors, equal to the number of 
senators and representatives to which each State was entitled in Congress, were 
to be appointed in such manner as the legislature of each of the States should 
determine. The electors thus chosen were to meet within their respective 
States, and to vote by ballot for two persons, only one of whom could be a 
citizen of the same State with themselves. The person having the greatest 
number of votes was to be president, provided he received a majority of 
the whole number of electors appointed. If more than one received a 
majority and had an equal number of votes, the House of Representatives 
would choose by ballot one of them for president. If no person received 
a majority, then the president was to be chosen from the five highest on the 
list. In such a case the House of Representatives voted by States, each 
of which was to possess one vote. For this purpose a quorum of the 
House was to consist of two-thirds of the States, and a majority of the 
States was necessary for a choice. In any event, the person having the great- 
est number of votes of electors was to be vice president, and if there remained 
two with equal votes, the Senate was, by ballot, to choose one, who thereupon 
became the vice president. All of these features were in the plan agreed to. 

It is apparent, from this brief account of the method ultimately adopted, 
that the electors could be chosen by popular vote within a State if the legisla- 
ture thereof cared so to do; or the legislature, if it preferred, might itself 
appoint them. The States might participate directly in the election in case 
no one voted for by the electors had received a majority of the votes cast. 
It was believed by the framers that this might frequently happen, inuring to 
the advantage of the smaller States, just as the selection by election would inure 
to the advantage of the larger ones. The election of the vice president under 
like circumstances would inure to the advantage of the small States equally 
represented by two senators in the upper house. 

The members of the convention were without experience in this matter, 
and the work of their hands was faulty. It has twice been amended, and 
within the memory of men still living its application gave rise to a disputed 
election which tested the forbearance and the capacity of the American people 
for self-government. The precedent for the use of electors chosen in this 
way seems to have been taken from the Constitution of the State of Maryland, 
in which the senators were chosen by persons called electors chosen from each 
of the counties of the State, who, meeting in the city of Annapolis on a 



CREATION OF THE EXECUTIVE 197 

specified date, elected by ballot " either out of their own body, or the people 
at large, fifteen senators (nine of whom to be residents on the western, and 
six to be residents on the eastern shore) men of the most wisdom, experience 
and virtue. . . ." ^ 

The great duty imposed upon the president appears to be that prescribed o^t^'of"''' 
in the oath or affirmation taken before entering upon the execution of his high '^^'^^ 
office, that he will to the best of his ability " preserve, protect and defend the 
Constitution of the United States." That he may be held to strict account- 
ability both for the performance of his duties and the exercise of his rights, 
both he and the vice president, who succeeds him in case of death or disability, 
are, to quote the exact language of the fourth section of the second article of 
the Constitution, to " be removed from Office on Impeachment for, and con- 
viction of, Treason, Bribery or other high Crimes and Misdemeanors." 

It has often been stated that the president possesses greater power than His 
any constitutional monarch, in that he is ex officio commander in chief of the Powers 
army and navy in any event, and of the militia of the several States when 
called into the actual service of the United States. This is indeed a great 
power; but it is one with which the framers of the Constitution were familiar, 
and which they were therefore willing to entrust to an executive officer of 
their own choice, inasmuch as the several States had entrusted such powers to 
their chief executives, termed indifferently president or governor, and desig- 
nated indifferently captain-general or commander-in-chief. The framers of 
the Constitution foresaw that it would be but natural that he would request 
the opinion of the principal officers of the various executive departments not 
created by but contemplated in the Constitution. It was neither unnatural that 
he should be authorized to grant reprieves and pardons for offenses against 
the United States ; nor that he should be denied power, in cases of impeachment, 
lest he might be tempted to exercise it in behalf of one whom he himself had 
appointed and in whose offense he might have participated. 

The convention was much disturbed as to the appointing power and as to 
its location. This was to be expected, both from the difficulty inherent in the 
subject and from the lack of any uniform rule in or experience had with the 
constitutions of the States, where various methods had been tried without the 
development of any one which commended itself as perfect or markedly 
superior to the others. 

That the president should negotiate treaties in the first instance was seen Treatiec 
to be inevitable from the outset ; that he should conclude them and bind the 
States and their citizens and inhabitants without check or cooperation on the 
part of the legislative department was felt to be far from desirable. The solu- 
tion in this case, however, was a very happy one, in that the president represents 
1 The Constitutions of the Several Independent States, 1781, p. 128, Article 15. 



198 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the States — and only States, not the citizens or inhabitants thereof, could 
conclude treaties. Thus it seemed necessary to the members of the convention 
that the legislative branch should participate in the exercise of this power, inas- 
much as treaties very frequently if not generally require legislation to carry 
them into effect. The cooperation of both branches of the legislature might 
therefore have been required, the more especially so, as by the great compromise, 
revenue bills could only originate in the House subject to amendment or modi- 
fication in the Senate. The lower house therefore could have claimed a hand 
in the transaction, as it might be as unwilling to pass an appropriation to carry 
a treaty into effect, although approved or modified by the Senate, as if the pres- 
ident alone, without the concurrence of the Senate, had negotiated the treaty.^ 
There were other views of this question which weighed heavily with the 
members. The Senate, as expected, would always be a small body in com- 
parison with the House of Representatives, and matters of great delicacy, 
such as foreign affairs, could, it was felt, be best determined in a body of 
restricted membership, especially as it was to possess advisory as well as ratify- 
ing qualities. Again, the States were expressly renouncing the right to con- 
clude treaties and conventions with foreign powers, which, as free, sovereign 
and independent States, they had possessed. By a happy device the president, 
the general agent of the States, now conducts the negotiations with foreign 
powers, and the Senate, as the representative of the States, acts as an advisory 
body and as a check upon his action. That the advisability of the transaction 

1 " M'. Madison observed that the Senate represented the States alone, and that for 
this as well as other obvious reasons it was proper that the President should be an agent 
in Treaties." Documentary History, Vol. iii, p. 604. Session of August 23d. 

The following extracts, which are reprinted from Sydney George Fisher's Evolution 
of the Constitution, 1897, pp. 306-7, indicate the successive steps that led to the treaty- 
making plan finally adopted in the Constitution: 

" That the president-general, with the advice of the grand council, hold or direct all 
Indian treaties in which the general interest or welfare of the colonies may be concerned." 
(Franklin's Plan of 1754.) 

" That the president, by the advice of the council, may hold and manage all Indian 
treaties in which the general interest or welfare of the colonies may be concerned." 
(Hutchinson's Plan, 1754.) 

" That the power and duty of congress shall extend to entering into alliances." (Frank- 
lin's Articles of Confederation, 1775.) 

" That the president and commander-in-chief shall have no power to make war or 
peace, jjr enter into any final treaty, without the consent of the general assembly and 
legislative council." (South Carolina Constitution of 1776.). 

" The United States, in congress assembled, shall have the sole and exclusive right 
and power of entering into treaties and alliances, provided that no treaty of commerce 
shall be made whereby the legislative power of the respective states shall be restrained 
from imposing such imposts and duties on foreigners as their own people are subjected to, 
or from prohibiting the exportation or importation of any species of goods or commodities 
whatsoever." (Articles of Confederation, 1778.) 

" The congress shall have the sole power of entering into and concluding treaties and 
alliances with foreign powers." (Drayton's Articles of Confederation, 1778.) 

"The senate shall have the sole and exclusive power to make treaties." (Pinckney's 
Plan. 1787.) 

"He [the President] shall have power, by and with the advice and consent of the 
senate, to make treaties, provided two-thirds of the senators present concur." (The 
Constitution.) 






CREATION OF THE EXECUTIVE 199 

be beyond question and that mere majorities should not. control, the approval 
of two-thirds of the senators present was required for approval of the treaty 
or convention submitted. 

The president, however, does not ordinarily negotiate directly with foreign 
countries, but indirectly by means of officers of the United States. The ques- 
tion naturally and inevitably arose as to the appointment of officers both to 
aid the president and to carry out the provisions of the Constitution in this 
and in other respects. At one time it was proposed that they be chosen by the 
Senate ; but ultimately the convention, while reserving the right on the part of 
the legislature to determine the mode of appointment, other than those 
thought to be essential and therefore specified in the Constitution, vested their 
appointment in the president in the first instance, subject to confirmation in 
the Senate, as it seemed appropriate that persons to act as officers of the 
United States should be passed upon and confirmed by the branch of the gov- 
ernment representing the States. The convention, in vesting the appoint- 
ment of officers in the president subject to confirmation by the Senate, seems 
to have had in mind the practice of Massachusetts, a practice which was specifi- 
cally called to its attention by Mr. Gorham, with the result that the power was 
happily at hand and in the following manner : 

He shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors, other public Ministers and Consuls, Judges of 
the supreme Court, and all other Officers of the United States, whose Appoint- 
ments are not herein otherwise provided for, and which shall be established 
by Law : but the Congress may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in the Courts of Law, 
or in the Heads of Departments.^ 

It was natural, under these circumstances, that he should be empowered to 
commission all officers of the United States, that he should receive ambassa- 
dors and other public ministers, inasmuch as he himself was charged with the 
conduct of foreign relations ; that he should from time to time give to the 
Congress " information of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and expedient; " and, 
in view of the experience of the colonies and the provisions to be found in the 
constitutions of the States, that he should " on extraordinary occasions, con- 
vene both houses, or either of them, and in case of disagreement between them, 
with respect to the time of adjournment, he may adjourn them to such time 
as he shall think proper." As executive of the United States it was highly 
desirable that he should, in the language of the Constitution, " take care that 
the laws be faithfully executed." 

If this were all, the eighth of Mr. Randolph's resolutions would have been 

1 Article II, Section 2, of the Constitution. 



A Check 
upon the 



200 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

overlooked, although the president would indeed enjoy a general authority to 
execute the national laws, " enjoy the executive rights vested in Congress by 
the Confederation," in addition to others which could not well exist because 
of a defect of power in the Congress under the Articles of Confederation. 
And it may perhaps be said that the eighth resolution was one of the most 
difficult which confronted the "convention, and one which, at the same time, 
was not the least successfully met and solved. 

The necessity was felt on all sides to have some check upon the legislative, 
Legislature j^g^ ^^ there was a check upon the executive. Wise laws and unwise statutes 

could be passed by the national legislature as well as by the legislatures of the 
States, opposed to the Constitution. This the eighth and fourteenth of Mr. 
Randolph's resolutions (which can be called the large State plan), as well as 
the sixth of Mr. Patterson's resolutions (which may be called the small State 
plan), sought to obviate. The colonies had had experience in both these 
matters. The King in Council had passed upon acts of the colonies in some 
cases before they became law ; in other cases rejected them within a prescribed 
period, and set aside decisions of courts of justice based upon alleged laws 
of the colonies in excess of the grant of power contained in the charter, or 
in instructions from the Crown. This power of the King in Council must 
on the whole have been reasonably exercised, inasmuch as the members of 
the convention frequently referred to it without criticism or disapproval. 
Indeed the local statesmen of the day retained this right or prerogative in 
various forms in the constitutions of the several States when they became 
independent political communities. Projects of the large and the small States 
containing provisions to the same effect can be taken as an opinion amount- 
ing to a conviction that some expedient or device of this kind was felt to be 
essential to the execution of the proposed Constitution, just as it was to the 
constitutions of the States and to the colonies under charter or governed 
directly by instructions from the Crown. The idea was an especial favorite 
with Mr. Madison and those of his school of thought. The eighth of Mr. 
Randolph's resolutions could be safely ascribed to Mr. Madison on the evi- 
dence of authorship contained in his correspondence with Mr. Randolph and 
with General Washington in the months preceding the Convention.^ The 
principle was sound but the method was faulty. 

Admitting the necessity of some check upon the legislature, there were 
strong reasons for lodging it in the hands of the executive. This would in- 
deed be cooperation with the legislature in the framing of laws, violating to a 
certain degree the separation of functions which had been adopted as a funda- 
mental principle of the proposed Constitution. It would be a further viola- 

1 See letter to Edmund Randolph, April 8, 1787, The Writings of James Madison, Hunt 
ed., Vol. ii, pp. 336-340; and to George Washington, April 16, 1787, Ibid., pp. 344-352. 



J 



CREATION OF THE EXECUTIVE 201 

tion, and indeed a very serious one, if the judiciary, charged with the interpre- 
tation of the laws, should be required to participate with the legislature and 
executive in their making. Therefore, after much discussion, debate and 
heart-burning on the part of Messrs. Madison and Wilson, the president was 
given a veto upon the proposed legislation of Congress, separate and distinct 
from the judiciary. Article 3 of the Constitution of the State of New York, 
eliminating therefrom the cooperation of the judiciary, had furnished a pre- 
cedent which Massachusetts adopted, freed from the cooperation of the judges, 
in Section I, Article II of the Constitution of that commonwealth. The New 
York expedient was to have even a larger influence and application. Substi- 
tuting the president for the council, the Federal Convention literally took this 
provision from the following passage of Article 3 of the Constitution of the 
State of New York of April 20, 1777: 

And that all bills, which have passed the senate and assembly, shall, before 
they become laws, be presented to the said council for their revisal and con- 
sideration ; and if upon such revision and consideration, it should appear 
improper to the said council, or a majority of them, that the said bill should 
become a law of this state, that they return the same, together with their 
objections thereto in writing, to the senate or house of assembly, in whichso- 
»ever the same shall have originated, who shall enter the objections sent down 
by the council, at large, in their minutes, and proceed to reconsider the said 
bill. But if after such reconsideration, two-thirds of the said senate or 
house of assembly, shall, notwithstanding the said objections, agree to pass 
the same, it shall, together with the objections, be sent to the other branch 
of the legislature, where it shall also be reconsidered, and if approved by two- 
thirds of the members present, shall be a law. 

And in order to prevent any unnecessary delays, be it further ordained, 
that if any bill shall not be returned by the council withm ten days after 
it shall have been presented, the same shall be a law. unless the legislature 
shall, by their adjournment, render a return of the said bill within ten days 
impracticable ; in which case the bill shall be returned on the first day of 
the meeting of the legislature, after the expiration of the said ten days.^ 

So much for the act of Congress, which the president may deem unwise or 
inconsistent with the terms of the Constitution. 

A more delicate and difficult question arose in the case of an act of a 
State legislature, which might be unwise and, in addition, inconsistent 
with the terms of the Constitution or an act of Congress or a treaty of the 
United States. The view which ultimately prevailed was stated in the session 
of August 23, 1787, by Mr. Sherman, who thought a negative unnecessary, 
" the laws of the General Government being Supreme & paramount to the 
State laws according to the plan as it now stands." ^ Mr. Wilson, as set as 
Mr. Madison upon the council of revision as a check upon the States, is 

1 The Constitutions of the Several Independent States, 1781, pp. 63-4, 

2 Documentary History, Vol. iii, pp. 601-2. 



202 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Executive and 
Judicial Vetoes 



Laws 
Operate 



reported by the latter to the effect that he " considered this as the key-stone 
wanted to compleat the wide arch of Government we are raising. The power 
of self-defence had been urged as necessary for the State Governments — 
It was equally necessary for the General Government. The firmness of 
Judges is not of itself sufficient — Something further is requisite — It will be 
better to prevent the passage of an improper law, than to declare it void when 
passed." ^ To which Mr. Rutledge of South Carolina replied, apparently with 
some heat, for he was not of an uncholeric disposition, that " If nothing else, 
this alone would damn and ought to damn the Constitution. Will any State 
ever agree to be bound hand & foot in this manner. It is worse than making 
mere corporations of them whose bye laws would not be subject to this 
shackle." 

The way out was contained in the sixth of Mr. Patterson's resolutions, pro- 
viding " that all Acts of the U. States in Cong^, . . . and all Treaties made 
& ratified under the authority of the U. States shall be the supreme law of 
the respective States so far forth as those Acts or Treaties shall relate to the 
said States or their Citizens, and that the Judiciary of the several States shall 
be bound thereby in their decisions, any thing in the respective laws of the 
Individual States to the contrary notwithstanding." ^ With slight modifica- 
tions this clause became Article VI of the perfected Constitution, leaving with 
the president what may be called an executive veto of the acts of Congress and 
with the judiciary a judicial veto of the acts of the Congress and of the States 
inconsistent with the Constitution of the Union, whether embodied in the State 
constitutions or in their ordinary laws. 

The President, it will be recalled, is charged with the execution of the laws 
of the United States, and it does not require argument that these should be 
executed, otherwise their enactment would be worse than futile. It is, how- 
ever, to be borne in mind that the government created by the Constitution was 
one without precedent, and that a principle was fortunately found which was 
meant to prevent the impracticable method of execution by force against a 
State, by having the laws operate directly on the individual, by virtue whereof 
a private citizen violating the law could be arrested and punished, and an 
official, national or State, violating the law could be restrained under a govern- 
ment of laws, not of men. Indeed, Mr. Madison based the distinction between 
a national and a federal government on the fact that the former operated upon 
individuals, whereas the latter operated upon the States, and although this 
distinction did not appear clearly in the text of Mr. Randolph's resolutions, it 
may well have been in the minds of the Virginian members who stood sponsor 
for them 



^Documentary History^ Vol. iii, p. 602. 
2 Ibid., pp. 127-8. 



of Force 
.\sainst 
a State 



CREATION OF THE EXECUTn'E 203 

In the plan of the Virginian delegation which Mr. Randolph laid before 
the convention on May 29th, the last clause of the sixth resolution authorized 
the national legislature " to call forth the force of the Union ag*'. any member 
of the Union failing to fulfill its duty under the articles thereof," ^ a proposi- 
tion likewise contained in the New Jersey plan, introduced on June 15th by 
William Patterson of that State, authorizing the federal government " to call 
forth ye power of the Confederated States, or so much thereof as may be 
necessary to enforce and compel an obedience to such Acts, or an Observance 
of such Treaties." ^ 

On the 30th of May, that is to say the very next day after Mr. Randolph's 
resolutions were introduced, Mr. Mason of Virginia observed, as reported by 
Mr. Madison, " that the present confederation was not only deficient in not 
providing for coercion & punishment ag^'. delinquent States ; but argued very 
cogently that punishment could not in the nature of things be executed on the 
States collectively, and therefore that such a Gov', was necessary as could 
directly operate on individuals, and would punish those only whose guilt re- 
quired it." ^ 

A very little experience of the temper of the Convention convinced Mr. xheUse 
]\Iadison of the impracticability of this provision, although he himself is 
credited with the authorship of the Virginian plan, so that on May 31st, but 
two days after the introduction of the resolution, he changed his mind, as 
appears from the following extract from the debates : 

The last clause of Resolution 6 authorizing an exertion of the force of 
the whole ag^'. a delinquent State came next into consideration. 

M"". Madison observed that the more he reflected on tlie use of force, 
the more he doubted the practicability, the justice and efificacy of it when 
applied to people collectively and not individually, — a Union of the States 
containing such an ingredient seemed to provide for its own destruction. 
The use of force ag^'. a State, would look more like a declaration of war, 
than an infliction of punishment, and would probably be considered by the 
party attacked as a dissolution of all previous compacts by which it might 
be bound. He hoped that such a system would be framed as might render 
this recourse unnecessary, and moved that the clause be postponed." * 

Mr. Madison informs us that " this motion was agreed to nem. con." It 
does not figure in the Constitution for the reasons disclosed and set forth in 
the debates. 

A few days later, to be specific on June 8th, Mr. Madison recurred to the 
subject and confirmed his recantation of the use of force against a State. 
Thus : 

1 Documentary History, Vol. iii, p. 18. 

2 Ihid., p. 128. 
^ Ibid., ^.22. 
* Ibid., pp. 33-4. 



204 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Could the national resources, if exerted to the utmost enforce a national 
decree ag^'. Mass'^. abetted perhaps by several of her neighbours? It w*. 
not be possible. A small proportion of the Community in a compact situa- 
tion, acting on the defensive, and at one of its extremities might at any time 
bid defiance to the National authority. Any Gov*, for the U. States formed 
on the supposed practicability of using force ag^'. the unconstitutional pro- 
ceedings of the States, w^. prove as visionary & fallacious as the Gov*, 
of Cong^." ^ 

The views thus expressed by Mr. Madison survived the convention in 
which they were formed and stated, as appears from the following extract 
from a letter dated October 24, 1787, written after its adjournment to his 
friend Thomas Jefiferson : 

A voluntary observance of the Federal law by all the members could 
never be hoped for. A compulsive one could evidently never be reduced 
to practice, and if it could, involved equal calamities to the innocent & the 
guilty, the necessity of a military force both obnoxious & dangerous, and in 
general a scene resembling much more a civil war than the administration 
of a regular Government. 

Hence was embraced the alternative of a Government which instead of 
operating, on the States, should operate without their intervention on the 
individuals composing them; and hence the change in the principle and 
proportion of representation.^ 

So much for the Father of the Constitution. Next, as to its classic ex- 
pounder. In introducing on June 18th his plan of a national and highly 
centralized form of government, Alexander Hamilton enumerated " the great 
and essential principles necessary for the support of Government." Among 
these " great and essential principles " he mentioned force, of which he said: 

Force by which may be understood a coertion of laws or coertion of arms. 
Cong^ have not the former except in few cases. In particular States, this 
coercion is nearly sufficient ; tho' he held it in most cases, not entirely so. A 
certain portion of military force is absolutely necessary in large communities. 
Mass'^ is now feeling this necessity & making provision for it. But how 
can this force be exerted on the States collectively. It is impossible. It 
amounts to a war between the parties. Foreign powers also will not be 
idle spectators. They will interpose, the confusion will increase, and a 
dissolution of the Union ensue.^ 

Colonel Hamilton, as in the case of Mr. Madison, clung to the views which 
he had expressed in the convention, and expressed them with peculiar and 
convincing force in The Federalist, written to justify the Constitution, which 
is, as is well known, the joint product of the minds and hands of Messrs. Ham- 



^ Documentary History, Vol. iii, p. 89. 

2 Writings of Madison. Hunt ed., Vol. v, p. 19. 

^Documentary History, Vol. iii, p. 141. 



CREATION OF THE EXECUTIVE 205 

ilton, Madison and Jay. In the following passage from The Federalist, the 
Colonel pays his respects to force : 

Whoever considers the populousness and strength of several of these 
states singly at the present juncture, and looks forward to what they will 
become, even at the distance of half a century, will at once dismiss as idle 
and visionary any scheme, which aims at regulating their movements by 
laws, to operate upon them in their collective capacities, and to be executed 
by a coercion applicable to them in the same capacities. A project of this 
kind is little less romantic than the monster-taming spirit, attributed to the 
fabulous heroes and demi-gods of antiquity. 

Even in those confederacies which have been composed by members 
smaller than many of our counties, the principle of legislation for sovereign 
states, supported by military coercion, has never been found effectual. It 
has rarely been attempted to be employed, but against the weaker members ; 
and in most instances attempts to coerce the refractory and disobedient, 
have been the signals of bloody wars ; in which one half of the confederacy 
has displayed its banners against the other.^ 

And on a third occasion, when converting to the proposed Constitution a 
hostile majority of the New York Convention, by force of argument, not by 
force of arms, Alexander Hamilton restated his views on this interesting sub- 
ject. In the first place, he declared it impossible to coerce States. Thus : 

If you make requisitions, and they are not complied with, what is to be 
done? It has been observed, to coerce the states is one of the maddest 
projects that was ever devised. A failure of compliance will never be 
confined to a .single state. This being the case, can we suppose it wise 
to hazard a civil war? ^ 

In the next place, he expressed the opinion that the States themselves would 
not agree to coerce others. Thus : 

But can we believe that one state will ever suffer itself to be used as an 
instrument of coercion ? The thing is a dream ; it is impossible.* 

To the same effect is the language of George Mason, the bitterest opponent 
of the Constitution, as Messrs. Madison and Hamilton were its strongest ad- 
vocates. On the matter of force, the opponents and the advocates agreed. 
Thus, Mr. Mason said on June 20th : 

It was acknowledged by Mr. Patterson that his plan could not be enforced 
without military coertion. Does he consider the force of this concession. 
The most jarring elements of nature ; fire & water themselves are not more 
incompatible tha[n] such a mixture of civil liberty and military execution. 
Will the militia march from one State to another, in order to collect the 
arrears of taxes from the delinquent members of the Republic? Will they 

1 The Federalist, 1802, Vol. i, p. 102. Paper, No. xvi. 

2 Jonathan Elliot, Debates in the Several State Conventions, 1836, Vol. ii, pp. 232-3. 

3 Ibid., p. 233. 



206 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

maintain an army for this purpose? Will not the citizens of the invaded 
State assist one another till they rise as one Man, and shake ofif the Union 
altogether? Rebellion is the only case in which the military force of the 
State can be properly exerted ag^^ its Citizens.^ 

Finally, lest the views of the statesmen of the Revolution, the founders of 
the Republic, and the framers of the Constitution, become wearisome, but one 
further quotation is made. In advocating the ratification of the Constitution 
by the Connecticut Convention, Oliver Ellsworth, with that fine poise and 
balance of mind characteristic of the senator and of the Chief Justice of the 
Supreme Court of the United States, pointed out that nothing would prevent 
the States from falling out if they so desired, saying on this point : 

If the United States and the individual states will quarrel, if they want 
to fight, they may do it, and no frame of government can possibly prevent it.^ 

In advocating the need of a coercive principle, he added : 

We all see and feel this necessity. The only question is, Shall it be a 
coercion of law, or a coercion of arms? There is no other possible alterna- 
tive. Where will those who oppose a coercion of law come out? Where 
will they end? A necessary consequence of their principles is a war of the 
states one against the other. I am for coercion by law — that coercion 
which acts only upon delinquent individuals. This Constitution does not 
attempt to coerce sovereign bodies, states, in their political capacity. No 
coercion is applicable to such bodies, but that of an armed force. If we 
should attempt to execute the laws of the Union by sending an armed force 
against a delinquent state, it would involve the good and bad, the innocent 
and guilty, in the same calamity.^ 

It was foreseen that force might be necessary to execute the laws of the 
Union, and therefore Congress was specifically empowered by a clause of the 
eighth section of the first article " to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections and repel invasions." 
But force is to be used, in accordance with the views previously set forth, 
against individuals, whether they act singly or in small groups, as a mob or in 
organized masses as insurgents. The individual, not the State, suffers; the 
individual, not the State, is coerced. At least this seems to have been the view 
of the framers of the Constitution and it has been the practice of the govern- 
ment of the more perfect Union of the North American States. In the session 
of the Federal Convention of July 14, 1787, Mr. Madison, adverting to this 
peculiarity of the proposed government for the union of the States, " called 
for a single instance in which the Gen'. Gov', was not to operate on the people 
individually," and continued, without an answer having been interposed to his 

^Documentary History, Vol. iii, pp. 171-2. 

2 Elliot, Debates, Vol. ii, p. 196. 

3 Ibid., p. 197. 



CREATION OF THE EXECUTIVE 207 

question, "The practicability of making laws, with coercive sanctions, for 
the States as political bodies has been exploded on all hands." ^ 
1 Documentary History, Vol. iii, p. 340. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 

Should not a court be established by authority of Congress, to take cognizance of prizes 
made by the Continental vessels? Whatever the mode is, which they are pleased to adopt, 
there is an absolute necessity of its being speedily determined on ; for I cannot spare time 
from military affairs, to give proper attention to these matters. (Extract from a letter of 
General Washington from Camp at Cambridge, to the President of Congress, November ii, 
1775- W orthington Chauncey Ford, Editor, The Writings of George IVashington, Vol. Ill, 
1889, pp. 213-214.) 

Resolved, That a committee be appointed, to take into consideration so much of said 
letter as relates to the disposal of such vessels and cargoes belonging to the enemy, as shall 
fall into the hands of, or be taken by, the inhabitants of the United Colonies. 

That the Committee consist of 7. {Journals of the Continental Congress, Session of 
November 17, I775, Library of Congress edition, Vol. Ill, igos, pp. 357-358.) 

4. That it be and is hereby recommended to the several legislatures in the United Colo- 
nies, as soon as possible, to erect courts of Justice, or give jurisdiction to the courts now in 
being for the purpose of determining concerning the captures to be made as aforesaid, and 
to provide that all trials in such case be had by a jury under such qualifications, as to the 
respective legislatures shall seem expedient. 

5. That all prosecutions shall be commenced in the court of that colonyi in which the 
captures shall be made, but if no such court be at that time erected in the said colony, or 
if the capture be made on open sea, then the prosecution shall be in the court of such 
colony as the captor may find most convenient, provided that nothing contained in this 
resolution shall be construed so as to enable the captor to remove his prize from any colony 
competent to determine concerning the seizure, after he shall have carried the vessel so 
seized within any harbour of the same. 

6. That in all cases an appeal shall be allowed to the Congress, or such person or per- 
sons as they shall appoint for the trial of appeals, provided the appeal be demanded within 
five days after definitive sentence, and such appeal be lodged with the secretary of Congress 
within forty days afterwards, and provided the party appealing shall give security to prose- 
cute the said appeal to eff^ect, and in case of the death of the secretary during the recess of 
Congress, then the said appeal to be lodged in Congress within 20 days after the meeting 
thereof. (Journals of the Continental Congress, Session of November 25, 1775, Library of 
Congress edition. Vol. Ill, 1905, pp. 373-374.) 

The resolves relative to captures made by Continental armed vessels only want a 
court established for trial, to make them complete. This, I hope, will be soon done, as 1 
have taken the liberty to urge it often to the Congress. (Extract from a letter of General 
Washington, from Cambridge, to the President of the Congress, December 14, I775- 
W orthington Chauncey Ford, Editor, The Writings of George Washington, Vol. Ill, 1889, 
p. 274-) 

Resolved, That a standing committee, to consist of five members, be appointed to hear 
and determine upon appeals brought against sentences passed on libels in the courts of 
Admiralty in the respective states, agreeable to the resolutions of Congress ; and that the 
several appeals, when lodged with the secretary, be by him delivered to them for their final 
determination: . . . (Journals of the Continental Congress, Session of January 30, 1777, 
Library of Congress edition. Vol. VII, 1907, p. 75.) 

Article IX. The United States in Congress assembled, shall have the sole and exclu- 
sive right and power ... of establishing rules for deciding in all cases, what captures on 
land or water shall be legal, and in what manner prizes taken by land or naval forces in 
the service of the United States shall be divided or appropriated . . . and establishing 
courts for receiving and determining finally appeals in all cases of captures, provided 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 209 

that no member of Congress shall be appointed a judge of any of the said courts. (The 
Articles of Confederation agreed to by the Congress, November 15, 1777, Revised Statutes 
of the United States, 1878, p. 9.) 

Resolved, That a court be established for the trial of all appeals from the courts of 
admiralty in these United States, in cases of capture, to consist of three judges, appointed 
and commissioned by Congress, either two of whom, in the absence of the other, to hold 
the said court for the despatch of business : 

That the said court appoint their own register : 

That the trials therein be according to the usage of nations and not by jury: . . . 
{Journals of the Continental Congress, Session of January 15, 1780, Library of Congress 
edition. Vol. XVI, 1910, p. 61.) 

Resolved, That the stile of the Court of Appeals appointed by Congress, be, " The Court 
of Appeals in Cases of Capture." . . . ■ 

Resolved, That appeals from the courts of admiralty in the respective states, be, as 
heretofore, demanded within five days after definitive sentence; and in future such appeals 
be lodged with the register of the Court of Appeals in cases of capture within forty days 
thereafter, provided the party appealing shall give security to prosecute such appeal to 
effect. 

Resolved, That all matters respecting appeals in cases of capture, now depending before 
Congress, or the commissioners of appeals, consisting of members of Congress, be referred 
to the newly erected Court of Appeals, to be there adjudged and determined according to 
law ; and that all papers touching appeals in cases of capture, lodged in the office of the 
secretary of Congress, be delivered to and lodged with the register of the Court of 
Appeals. (Journals of the Continental Congress, Session of May 24, 1780, Library of 
Congress edition. Vol. XVII, 1910, pp. 458, 459.) 

Section 8. The Congress shall liave Power ... To declare War, grant Letters of 
Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . . 
(Constitution of the United States, Article I.) 

Section 2. The judicial Power shall extend ... to all Cases of admiralty and mari- 
time Jurisdiction. . . . (Constitution of the United States, Article III.) 

The district courts of the United States are courts of prize; and have power to carry 
into effect the sentences of the old continental courts of appeals in prize causes. (Per 
Mr. Chief Justice Marshall in Jennings v. Carson, 4 Cranch, 2, decided in 1807.) 



CHAPTER X 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 



Voluntary 
Self-denials — 
Including 
Disarmament 



An examination of that part of the ninth of the Articles of Confederation 
relating to controversies and their settlement shows that it deals with three 
situations or conditions: first, prizes taken by land or naval forces; second, 
the trial of piracies and felonies committed on the high seas; third, contro- 
versies of all kinds between the States, sovereign, free and independent, 
forming the Confederation, styled in Article I, The United States of America. 

The members of the Congress understood, or their experience had taught 
them by 1777, when the Articles of Confederation were adopted by them for 
ratification by the States, that, although " each State retains its sovereignty, 
freedom, and independence, and every power, jurisdiction, and right which is 
not by this Confederation expressly delegated to the United States in Congress 
assembled," it was nevertheless necessary to provide for certain things if they 
were to hold together during the war against the mother country. They 
might agree to use force against Great Britain, and, indeed, their union was 
formed for this purpose; but they were unwilling, as are all sovereign, free 
and independent States, to have force used against themselves. They had 
practically disqualified themselves from settling disputes arising between them 
by direct negotiations, because in Article VI they had provided that " no two 
or more States shall enter into any treaty, confederation or alliance whatever 
between them, without the consent of the United States in Congress assem- 
bled." In the same article they had practically agreed to such a limitation of 
their forces as to amount to disarmament, providing that neither vessels of 
war nor armed forces should " be kept up in time of peace by any State, except 
such number only, as shall be deemed necessary by the United States in Con- 
gress assembled, for the defence of such State, or its trade." And they drew 
the logical conclusion from this provision, that no State should engage in 
war without the consent of the Congress, unless it was actually invaded by 
enemies or was menaced by such invasion. 

The time-honored method of settling controversies between States sover- 
eign, free and independent, has been and still is either by diplomatic negotia- 
tion or by armed conflict; and the Revolutionary statesmen were intelligent 
enough to recognize that, if diplomacy could not effect a settlement, and if an 



States 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 211 

appeal to arms were excluded, there must be a resort to some method of settle- 
ment which was neither diplomatic nor military. They interposed, therefore, ^fn^oT 
between the two, the judicial method, recognizing, although not appealing to Settlement 
Aristotle in confirmation thereof, that " justice is the bond of men in States, 
and the administration of justice, which is the determination of what is just, 
is the principle of order in political society." They had in mind a court of 
justice, and they so said. They recognized that the court, to have jurisdic- 
tion over the States and to bind their actions, could only be created by them 
directly, or by their agent for this purpose, as they had no superior. They 
therefore invested Congress with the power, a Congress in which each sover- 
eign, free and independent State of the Confederacy had an equal vote, al- 
though each might, according to its pleasure, send an unequal number of 
representatives. 

After having defined the matters which, in the interest of the States, had Courts 
to be settled with those countries which they considered foreign and those Confederated 
which they considered, by virtue of the Confederation, as domestic, the Con- 
federated States authorized the Congress as their agent, or rather their own 
delegates in Congress assembled, to appoint " courts for the trial of piracies 
and felonies committed on the high seas ; " to establish " courts for receiving 
and determining finally appeals in all cases of captures ; " and, in the matter 
of disputes between the States themselves, to appoint " commissioners or 
judges to constitute a court for hearing and determining the matter in ques- 
tion." ^ 

It is to be observed that these are likewise considered judicial questions by 
the Constitution, which succeeded the Confederation, and that they are either 
referred to courts by the Constitution or by act of Congress passed in pur- 
suance of authority vested in that body by the Constitution. Therefore, in 
Section 8 of Article I of the Constitution, vesting all the legislative power in 
Congress which the States cared to grant to the United States, it is said that 
" Congress shall have Power . . . To define and punish Piracies and Felonies 
committed on the high Seas." Going a step further, the framers of the Con- 
stitution added "and Offenses against the Law of Nations;" and, in the 
clause immediately following, the Congress is~invested with the power " to 
make Rules concerning Captures on Land and Water." In Article III of the 
Constitution it is declared that " the judicial Power of the United States, shall 
be vested in one supreme Court, and in such inferior Courts as the Congress 
may from time to time ordain and establish," in accordance with the clause 
in Section 8 of Article I, authorizing Congress " to constitute Tribunals infe- 
rior to the supreme Court." 

After providing in the 1st section of Article III for the creation of a 

^ For the text of the Articles of Confederation and the Constitution, see Appendix, pp. 
494-513. 



212 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



International 
Questions 



Supreme Court and of inferior courts, the Constitution vests the judiciary 
with the express power to pass lipon and to decide all cases affecting ambas- 
sadors and other pubHc ministers, and consuls, all cases of admiralty and 
maritime jurisdiction, controversies to which the United States shall be a 
party, controversies between two or more States, and controversies between a 
State and foreign States, citizens or subjects. It should further be said in 
this connection that certain judicial questions were deemed to be of such 
importance that the Supreme Court was vested with original jurisdiction 
thereof, whereas of other questions the Supreme Court was to exercise appel- 
late jurisdiction. Thus in Article III, Section 2, of the Constitution: 



International 
Implications 
of the 

Confederate 
Judiciary 



In all cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have 
original Jurisdiction. 

It will be seen that the first category consists of international questions, 
cases affecting ambassadors, public ministers and consuls, and suits between 
States of the American Union, which, by the 10th Amendment to the Con- 
stitution, are regarded as possessing the powers not delegated to the United 
States in the Constitution. As in the case of the Confederation, the States 
renounced the right to enter into direct negotiations or to engage in war by 
two clauses of the 10th section of Article I, providing that " No State shall 
enter into any Treaty, Alliance, or Confederation;" that "no State shall, 
without the Consent of Congress . . . keep Troops, or Ships of War in time 
of Peace, enter into any Agreement or Compact with another State, or with 
a foreign Power, or engage in War, unless actually invaded or in such immi- 
nent Danger as will not admit of delay." In other words, in the relations of 
the States with foreign nations, they invested the United States with their 
conduct and adjustment. In questions between and among themselves they 
created another agency of their own, by which and through which these ques- 
tions should be settled. They showed their belief in the efficacy of judicial 
settlement by investing their Supreme Court with original jurisdiction in 
questions concerning ambassadors, ministers, and consuls, in the hope that 
disputes concerning these matters would be settled by judicial process, 
just as the disputes between themselves were to be settled by judicial 
process. 

But as the nations of the world had not renounced direct negotiations or a 
resort to arms, as the States themselves had done in the exercise of their 
wisdom and discretion, the United States as their agent was invested by the 
Articles of Confederation with the right to conduct diplomatic negotiations 
and to resort to war if need be, thus confessing their faith in judicial settle- 
ment and manifesting, it would seem, their willingness to have the disputes 
of the Union, like the disputes of the States in matters of law and equity. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 213 

settled by decisions of courts, if the United States, like the States in their 
wisdom and discretion, should interpose the judicial remedy between the break- 
down of diplomacy and the resort to arms. Because of the novelty and of 
the interest of the provisions of the Confederation in these respects, it is of 
importance to dwell upon them, since they are as capable of application to 
the sovereign, free and independent States forming the society of nations as 
they were to the sovereign, free and independent States forming the Con- 
federation. Because of their retention in the Constitution and of their de- 
velopment into agencies which have justified themselves for a hundred years 
and more in the settlemient of disputes between the States of the Union it is 
more evident to us today than it was to them that these agencies are likewise 
applicable to disputes between and among the members of the society of 
nations. 

There is an added interest in such an examination, because the imperfect 
procedure of the Confederation became the perfected procedure of the Con- 
stitution. By the determination of what is just, exactly as set forth in the 
teachings of Aristotle, the principle of order in that political society which 
we call the United States can be and will be the principle of order in the 
political society which we call the society of nations unless the nations, like 
Saturn, are always to devour their offspring. 

It was natural that the framers of the Constitution should confess their Lessons 

of the 

faith in judicial settlement, because there were courts in all the States and a ^^^f^^^ 
Supreme Court in every State. They had had experience with felonies and 
piracies committed on the high seas ; they had been parties to the wars of Great 
Britain — indeed, the Seven Years War, called by us the French and Indian 
War, began in the western world — and they felt the necessity of rules for 
the capture and disposition of prizes. Vice admiralty courts had been estab- 
lished in the colonies with appeals to Great Britain, and on the eve of the 
Revolution these admiralty courts had come very prominently to their atten- 
tion, in that they had recently been invested with the trial of political offenses 
without the intervention of a jury, as a court of admiralty is a court of civil, 
not of common, law. They had had experience with disputes not only with 
the mother country concerning the correct interpretation of their charters; 
but with other colonies on the same and other matters. The King in Council 
had been the court of appeal in such cases; the King in Council exercised a 
large control over the colonies as well as in the settlement of their disputes; 
and the King in Council is today, through the instrumentality of the judicial 
committee thereof, the court of appeal from the colonies and of greater 
Britain. It was therefore natural that, brought together by. what they re- 
garded the oppression of the mother country, they should settle these matters 
in the way with which they were familiar, preferring the old rut to the new 
road whenever possible. 



Felonies 



214 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Therefore, under the Articles of Confederation the Congress, with its 
powerless president, was substituted for the Council, with its powerful king. 
In the exercise of this jurisdiction, the Congress endeavored to avail itself 
of the institutions and agencies of the States, without attempting to create 
its own as to which it felt a lack of authority. Therefore, in the beginning 
the Congress contented itself with requesting the States to assume jurisdiction 
where their agencies could be made use of; but, in the end. Congress felt itself 
obliged to create an agency of its own, notwithstanding the existence of local 
institutions. It refrained from doing so until the Articles of Confederation 
had been adopted by the Congress and approved by the majority of the States, 
although not by all of them. In the case of disputes between the States, the 
Congress appears to have followed the practice of the King in Council in 
accepting jurisdiction before referring the matters to judicial determination 
by a commission or committee.^ 

Let us now take up the provisions of the ninth of the Articles of Confedera- 
T-^i^ioi tion in each of these matters, and in the order in which they are set forth 

p^^acies therein. " The United States, in Congress assembled, shall have the sole and 

exclusive right and power of . . . appointing courts for the trial of piracies 
and felonies committed on the high seas." Under this heading, the Congress 
contented itself with utilizing the machinery of the States. Thus, by an ordi- 
nance of April 5, 1781, it was provided that persons charged with such offenses 
should be " enquired of, tried and adjudged by grand and petit juries, accord- 
ing to the course of the common law, in like manner as if the piracy or felony 
were committed upon the land, and within some county, district or precinct in 
one of these United States." ^ 

Having thus provided for the law, Congress determined the court in which 
the law should be administered. Thus, " the justices of the supreme or supe- 
rior courts of judicature, and judge of the Court of Admiralty of the several 
and respective states, or any two or more of them, are hereby constituted and 
appointed judges for hearing and trying such offenders." In some of the 
States there was more than one Admiralty judge. Therefore, the Congress 
met this contingency by providing that " if there shall be more than one judge 
of the admiralty in any of the United States, that then, and in such case, the 
supreme executive power of such State may and shall commissionate one of 
them exclusively to join in performing the duties required by this ordinance." 

iThe following account is based upon an admirable and learned article entitled Federal 
Courts Prior to the Adoption of the Constitution, by the Honorable J. C. Bancroft Davis, Re- 
porter to the Supreme Court of the United States (131 U. S., App. xix-Ixiii), and The Prede- 
cessor of the Supreme Court, by Professor J. Franklin Jameson, in the volume entitled Essays 
in the Constitutional History of the United States in the Formative Period, 1775-1789 (1889), 
pp. 1-45. Where not directly quoted, the texts of these remarkable essays have been para- 
phrased. A valuable account of this matter will be found in Chapters iv, v, and vi of 
Hampton L. Carson's History of the Supreme Court of the United States, Vol. i. 

"^Journals of the Continental Congress, Vol. xix, pp. 354-6. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 215 

As this ordinance was amended on March 4, 1783/ in matters of form rather 
than of substance, it is not necessary to quote it, and, following the example 
of Judge Davis in this very matter, " I have not thought that any good purpose 
would be served by hunting up and printing a list of the persons tried under 
these ordinances." ^ 

The important fact for the matter in hand is that the States represented 
in Congress felt the need of some provision for the trial of piracies and fel- 
onies committed on the high seas, and the mere statement of this fact is suffi- 
cient as showing that, in their opinion, a judicial body was required for this 
purpose. As they were to be tried by a law common to the States, with 
which the States were familiar and which they had administered, the agencies 
of the States were used. 

" The United States in Congress assembled shall have the sole and exclu- 
sive right and power of . . . establishing courts for receiving and determining 
finally appeals in all cases of captures, provided that no member of Congress 
shall be appointed a judge of any of the said courts." The power vested in 
Congress was exercised not merely, as in the case of piracies and felonies, at 
the end of the Revolution, but at the very beginning. The State machinery 
which was first employed was found inadequate, and the Congress established 
a court of its own, finally known as the Court of Appeals in Cases of Capture. 
This is the first instance of a federal tribunal created within the United States, The^ 
and is considered as the immediate predecessor of the Supreme Court thereof; xrfbJnii 
although, as will be seen later, it shares this exalted honor with the commis- 
sions under the ninth article appointed for the trial of controversies between 
the States. It is therefore necessary to define the nature and to consider the 
origin and development of this tribunal in some detail. 

The necessity of prize procedure was evident from the beginning of the 
Revolution, indeed before the Declaration of Independence, and the experi- 
ence had in the matter of prizes forced Congress, somewhat reluctantly, to 
exercise the power of appointing a court for this purpose before the Articles 
of Confederation had been adopted by the last of the States on March 1, 1781, 
thus investing the Congress with the power legally so to do. It was inevitable 
that enterprising merchantmen of the different States would waylay British 
commerce upon the high seas, and it was clear to discerning minds that vessels 
belonging to different States and commanded by citizens thereof would fall 
out among themselves as to the shares of the prize to which they thought 
themselves entitled, involve the States in controversies and, by lawless conduct, 
draw the United States into controversy, perhaps into conflict, with foreign 
States. 

^Journals of the American Congress from 1774 to 1788 (1823), Vol. iv, p. 170. 
2 131 U. S., App.. p. xiv. 



216 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The Revolution broke out in Massachusetts. It was therefore in Massa- 
chusetts that the first prize court was established. In June, 1775. Elbridge 
Gerry, then beginning a long and distinguished political career, moved the 
Provincial Congress of that Colony to encourage the fitting out of armed 
vessels and to establish a court for the trial and condemnation of prizes. On 
November 10, 1775, an act was passed which has been stated to be " the first 
actual avowal of offensive hostilities against the mother country, which is to 
be found in the annals of the revolution," ^ and which John Adams, then at 
the bar when not upon the hustings, considered to be one of the " boldest, most 
dangerous, and most important measures and epochas in the history of the 
new world, the commencement of an independent national establishment of a 
new maritime and naval military power." ^ General Washington, then in 
command of the Continental army in and about Boston, which he had besieged 
and hemmed in, recognized the importance of this action. He also felt the 
necessity of uniform regulations and practice to prevent the States from quar- 
reling among themselves, to secure uniformity of decision in matters of prize, 
which was in the interest alike of the States and of the United States in their 
relations with foreign countries. Therefore, on November 11, 1775, the day 
after the passage of the Massachusetts act, he thus wrote to John Hancock, 
President of the Continental Congress: 

Enclosed you have a copy of an act passed this session, by the honorable 
Council and House of Representatives of this province. It respects such 
captures as may be made by vessels fitted out by the province, or by indi- 
viduals thereof. As the armed vessels, fitted out at the Continental expense, 
do not come under this law, I would have it submitted to the consideration 
of Congress, to point out a more summary way of proceeding, to determine 
the property and mode of condemnation of such prizes as have been or here- 
after may be made, than is specified in this act. 

Should not a court be established by authority of Congress, to take cog- 
nizance of prizes made by the Continental vessels? Whatever the mode is, 
which they are pleased to adopt, there is an absolute necessity of its being 
speedily determined on. . . .^ 

Fearing that Congress had not taken action, he again wrote to its president 
on December 4th of the same year : 

It is some time since I recommended to the Congress, that they would 
institute a court for the trial of prizes made by the Continental armed ves- 
sels, which I hope they have ere now taken into their consideration ; other- 
wise I should again take the liberty of urging it in the most pressing 
manner.* 

And, as showing the importance which the General rightly attached to this 

1 James T. Austin, The Life of Elbridge Gerry, 1828. Vol. i, p. 94. 

2 Ibid., p. 96. 

3 Ford, Writings of George Washington, Vol. iii, p. 213: Sparks, Vol. iii, pp. 154-5. 
*Ford, ibid., p. 257; Sparks, p. 184. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 217 

matter, a further quotation may be made from a letter addressed to his fellow- 
Virginian, Richard Henry Lee, who, a few months later, on June 7, 1776, was 
to move the momentous resolutions in Congress " that these United Colonies 
are and of right ought to be free and independent States." ^ Thus, on De- 
cember 26th, he wrote to Mr. Lee : 

... I must beg of you, my good Sir, to use your influence in having a 
court of admiralty, or some power appointed to hear and determine all matters 
relative to captures ; you cannot conceive how I am plagued on this head, 
and how impossible it is for me to hear and determine upon matters of 
this sort, when the facts, perhaps, are only to be ascertained at ports, forty, 
fifty, or more miles distant, without bringing the parties here at great 
trouble and expense. At any rate, my time will not allow me to be a com- 
petent judge of this business.^ 

The Congress, however, had not been remiss, and immediately upon the 
receipt of General Washington's first letter it took action. On November 17th 
it was " Resolved, That a committee be appointed to take into consideration 
so much of said letter as relates to the disposal of such vessels and cargoes 
belonging to the enemy, as shall fall into the hands of, or be taken by, the 
inhabitants of the United Colonies." ^ On November 23d, the committee 
to which the letter was referred brought in its report. It was ordered to 
lie upon the table " for the perusal of the members ; " it was " debated by 
paragraphs " on the 24th and 25th of the same month, and adopted on No- 
vember 25, 1775.'' The resolutions authorized the capture of prizes upon 
the high seas and legalized those which had alread been made. They deter- 
mined the shares of the captors in the prize and the distribution of the money. 
They provided, as later in the case of piracies and felonies committed on the 
high seas, that the trial should take pl^ce in the colonial courts (because at this 
time the Declaration of Independence had not been proclaimed), and that an 
appeal should lie to the Congress. The section dealing with procedure on 
appeal thus reads : 

6. That in all cases an appeal shall be allowed to the Congress, or such 
person or persons as they shall appoint for the trial of appeals, provided 
the appeal be demanded within five days after definitive sentence, and such 
appeal be lodged with the secretary of Congress within forty days after- 
wards, and provided the party appealing shall give security to prosecute the 
said appeal to eiifect, and in case of the death of the secretary during the 
recess of Congress, then the said appeal to be lodged in Congress within 20 
days after the meeting thereof.^ 

The passage of this resolution was pleasing to " the General," and, with a 

1 Journals of the Continental Congress, Vol. v, p. 425. 

2 Ford, Writings of George Washington, Vol. iii, p. 274; Sparks, Vol. iii, p. 217. 
^Journals of the Continental Congress, Vol. iii, pp. 357-8. 

*/&{rf., pp. 371-5. 
5 Ibid., p. 374. 



218 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



First Case 
of Appeal 



Congressional 
Committee 
on Appeals 



clearness of vision and a tenacity of purpose, recognized by his countrymen 
and with which a grateful posterity credits him, he pointed out the one thing 
needed to perfect the action of Congress in a passage from a letter to its presi- 
dent, dated December 14, 1775 : 

The resolves relative to captures made by Continental armed ^'essels 
only want a court established for trial, to make them complete. This, I 
hope, will be soon done, as I have taken the liberty to urge it often to the 
Congress.^ 

In the end, the Congress was forced to take the action which the far-sighted 
Washington had recommended in the beginning; but it was only taken after 
great hesitation, with much reluctance, and when a very bitter experience had 
convinced its members of the absolute necessity of a court. 

Before stating this incident, it should be mentioned that an Admiralty 
Court, generally requiring trial by jury, was organized in each of the colonies 
or States in accordance with the recommendation of the Congress that this 
be done, as it will be observed that Congress contented itself for the present 
with an appeal from the local jurisdictions, which were regarded as courts of 
first instance in prize matters. The intent of Congress seems to have been 
misunderstood, as on January 31st and February 27, 1776, two cases which- 
had not been passed upon by the colonial courts were referred direct to the 
Congress by the petitioners, and in each case, in accordance with its under- 
standing of its resolutions, the Congress referred the applicants to the colo- 
nial courts. However, a few weeks later (April 4, 1776), the Congress took 
original jurisdiction in the matter of a prize vessel which had been run ashore,^ 
directed that it be sold, and decreed the distribution of the proceeds arising 
from the sale. This appears, however, to have been the only instance in which 
the Congress took original jurisdiction. Therefore, it only acted in cases of 
appeal, at first directly, shortly thereafter through committees, and finally by 
means of an appellate court established in accordance with General Washing- 
ton's recommendation. 

The first case of appeal was that of the schooner Thistle,^ which was laid 
before Congress on August 5, 1776, a month after the Declaration of Inde- 
pendence. Congress attempted to hear the appeal as a body but eventually 
referred it to a special committee, and the earlier cases were referred to special 
committees until, in the beginning of 1777, Congress felt the necessity of and 
therefore created a standing committee on appeals, to consider such cases as 
should be laid before it in accordance with its resolution of November 25, 
1775. This important action was taken on January 30, 1777, when it was 

ipord, Writings of Washington, Vol. iii, p. 274; Sparks, Vol. iii, pp. 196-7. 
2 Journals of the Continental Congress, Vol. iv, p. 256. 
sibid., Vol. V, p. 631. 



I 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 219 

"Resolved, That a standing committee to consist of five members, be ap- 
pointed to hear and determine upon appeals brought against sentences passed 
on libels in the courts of Admiralty in the respective states, agreeable to the 
resolutions of Congress; and that the several appeals, when lodged with the 
secretary, be by him delivered to them for their final determination." ^ The 
members of the committee were frequently changed, but the method was con- 
tinued until a court was established. The defects of a changing personnel, 
even although forming a permanent committee, were pointed out by the mer- 
chants and citizens of Philadelphia, with the approval of the Pennsylvanian 
authorities, in the petition to Congress of May, 1779, which is susceptible of 
a larger application : 

The success of the American privateers exceeded for a time the most 
sanguine expectation, and in all probability had still continued, if certain 
causes had not arisen to interrupt it. What these Causes are, we do not 
mean to enumerate. We shall only suggest one, and leave it to your honors 
to say what influence it may have had, and to provide a remedy against it 
in future. 

Certainty in the Laws is the great Source of the people's Security, and 
an adherence to prior adjudication is the principal means of attaining that 
certainty. But the Court of Appeals in its present State is continually fluc- 
tuating, the same Judges seldom acting for more than a few months. In 
a Court where there is this Constant change and succession of Judges, it is 
impossible that fixed principles can be established, or the doctrine of prece- 
dents ever take place. 

Every obstacle that creates unnecessary delay in the administration of 
Justice, should be carefully removed, but when the seeds of this delay are 
sown in the very Constitution of the Court, the People, rather than have 
recourse to a Tribunal of that kind, will be induced to give up their right. 
This we apprehend to be the nature of the Court of Appeals. . . . 

Impressed with these Considerations and others that might be men- 
tioned, [we venture] to point out the propriety of nominating Judges of 
Appeal, who, not being members of Congress, would have more leisure for 
the discharge of their employment. We shall only observe that we trust to 
the Wisdom of Congress to establish the Court of Appeal on a lasting and 
solid Foundation, and to remove by proper regulations the imperfections 
that are at present so generally the ground of Complaint.- 

The merchants and citizens of Philadelphia were peculiarly qualified for 
discovering, and were interested in pointing out, the defects of the judgments 
obtained by a standing committee on appeal in prizes with a shifting member- 
ship, for events had taken place under their very eyes which filled them with 
apprehension, not only as to their own affairs but as to the state of the Union, 
if Union it could be called. The case of the Active, for it is to this that 
reference is made, called attention to another great defect of the existing 
system, because, although a State decree was reversed by the committee on 

1 Journals of the Continental Congress, Vol. vii, p. 75. 

=» Jameson, Essays in the Constitutional History of the United States, pp. 24-26. 



the Active 



220 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

appeal, the State court did not feel itself obliged to give effect to the reversal 
of its judgment and to recognize by proper action the rights of property 
acquired under federal appeal. 
"Cas\of. The facts of this case are very interesting, and should be stated in this 

connection, as it was one of the cases v^^hich led to the organization of a 
court of appeal, and, indirectly, to the establishment of the Supreme Court 
itself. One Gideon Olmstead and three other citizens of Connecticut were 
captured by the British and carried to Jamaica, where they were put on board 
the sloop Active, laden with a cargo of supplies for New York, then in pos- 
session of the British. They were obliged to assist in its navigation, which 
they were unwilhng to do. They therefore rose against the master and crew, 
took possession of the sloop, and made for the port of Egg Harbor, in New 
Jersey; but, before reaching this port, the Active, under their control, was 
captured by one Houston in command of the Pennsylvanian armed brig Con- 
vention. The Active was taken into the port of Philadelphia and libeled as 
prize of the Convention. The case was further complicated by the fact that 
the ofificers of a privateer, cruising in company with the Convention, claimed 
to have taken part in the capture, and therefore made claim to a part of the 
proceeds. Olmstead and his companions, claiming the sloop Active, in which 
they were in control when taken, put in a claim to the whole of the proceeds. 
In the admiralty court of Pennsylvania a trial was had by jury, the verdict 
of which was as follows : 

One-fourth of the net proceeds of the sloop Active and her cargo to the 
first claimants, three-fourths of the net proceeds of the said sloop and her 
cargo to the libellant and the second claimant, as per agreement between 
them.^ 

Judgment was entered upon the verdict, from which an appeal was taken by 
Olmstead and others to the Congressional committee of appeal. On Decem- 
ber 15, 1778, the commissioners reversed the decision of the State court and 
rendered judgment in favor of Olmstead and others, directing the court below 
to sell the sloop and cargo and to pay the remainder to the appellants after 
deducting costs, charges and expenses. The judge of the Pennsylvania Court 
of Admiralty recognized the validity of the decision reversing the decree of his 
court, but, insisting that he could not set aside the verdict of the jury, issued 
an order that the sloop and cargo be sold and the proceeds brought into court. 
On December 28, 1778, the appellants moved the committee that process might 
issue to the Admiralty Court of Pennsylvania commanding the marshal to 
execute the decree of the committee. The committee accordingly directed the 
marshal to hold the money subject to their order, but he disregarded this order 
and paid the money to the Admiralty Judge; whereupon the committee de- 

1 Journals of the Continental Conqress, Vol. xiii, p. 282. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 221 

clared that " this Court, being unwilHng to enter into any proceedings for 
Contempt, lest Consequences might ensue at this Juncture dangerous to the 
pubHc Peace of the United States, will not proceed farther in this affair, nor 
hear any Appeal, until the Authority of this Court shall be so settled as to 
give full Efficacy to their Decrees and Process." ^ At the same time the com- 
mittee laid the proceedings before Congress, which approved their action in 
an elaborate series of resolutions, which are so important, because of their 
larger bearing upon the relation of the States, or indeed of any nation to 
foreign countries, that they are quoted in full : 

Resolved, That Congress, or such person or persons as they appoint to fon^jressionai 
hear and determine appeals from the courts of admiralty, have necessarily Resolutions — 

, . ^^ ,, . 1 • • r . 1 ■ • ^1 1 the Relation 

the power to examme as well mto decisions on tacts as decisions on the law, ot states 
and to decree finally thereon, and that no finding of a jury in any court of 
admiralty, or court for determining the legality of captures on the high seas 
can or ought to destroy the right of appeal and the re-examination of the 
facts reserved to Congress ; 

That no act of any one State can or ought to destroy the right of appeals, 
''to Congress in the sense above declared : 

That Congress is by these United States invested with the supreme sov- 
ereign power of war and peace : 

That the power of executing the law of nations is essential to the sov- 
ereign supreme power of war and peace : 

That the legality of all captures on the high seas must be determined by 
the law of nations : 

That the authority ultimately and finally to decide on all matters and 
questions touching the law of nations, does reside and is vested in the sov- 
ereign supreme power of war and peace : 

That a controul by appeal is necessary, in order to compel a just and 
uniform execution of the naw of nations: 

That the said controul must extend as well over the decisions of juries 
as judges in courts for determining the legality of captures on the sea ; 
otherwise the juries would be possessed of tlie ultimate supreme power of 
executing the law of nations in all cases of captures, and might at any time 
exercise the same in such manner as to prevent a possibility of being con- 
trouled ; a construction which involves many inconveniences and absurd- 
ities, destroys an essential part of the power of war and peace entrusted to 
Congress, and would disable the Congress of the United States from giving 
satisfaction to foreign nations complaining of a violation of neutralities, of 
treaties or other breaches of the law of nations, and would enable a jury in 
any one State to involve the United States in hostilities; a construction 
which for these and many other reasons is inadmissible : 

That this power of controuling by appeal the several admiralty jurisdic- 
tions of the states, has hitherto been exercised by Congress by the medium 
of a committee of their own members: 

Resolved, That the committee before whom was determined the appeal 
from the court of admiralty for the State of Pennsylvania, in the case of the 
sloop Active, was duly constituted and authorized to determine the same.^ 

^ Jameson, Essays, p. 20. 

^Journals of the Continental Congress, Vol. xiii, pp. 283-4. Session of March 6, 1779. 



222 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The legislature of Pennsylvania, on March 8, 1780, repealed the statute 
authorizing juries to decide admiralty causes, but the case of the Active was 
not settled during the period of the Confederation, nor indeed for many 
years after the demise. The moneys had been deposited with one David Rit- 
tenhouse, the distinguished astronomer, at that time treasurer of the State, 
after whose death Olmstead and others sued his executrices for them in 1802 
in the United States district court for Pennsylvania. Judge Peters decreed for 
the plaintiffs; but the legislature of Pennsylvania, apparently desirous of 
keeping the money within their jurisdiction, passed an act directing its attorney 
general to sue the executrices for the money and directing the governor to 
protect them from federal process. In 1809 the case came before the Supreme 
Court of the United States,^ which had superseded the committee of appeals of 
the Confederation, and before Chief Justice Marshall, who sat in the seat of the 
commissioners, where the decision of the committee was finally affirmed, and 
execution of the judgment of the district court decreed. Even then the Penn- 
sylvanian authorities were minded to resist. Pennsylvanian troops surrounded 
the house of the executrices to prevent the service of the writ, but in the end 
the federal marshal, " with some firmness, much composure, and great ad- 
dress," succeeded, as Professor Jameson says, in entering the house, afterward 
humorously called Fort Rittenhouse, and serving the process.^ 

It is easy to decry the weakness of the Confederation because of its failure 
to execute its judgment in the case of the Active, but it should be borne in 
mind that the Congress was a Congress of sovereign, free and independent 
States, which are loath to allow the use of force against themselves, even in the 
administration of justice — which appears also to be a characteristic of the 
American States composing the American Union; for, in the procedure and 
practice of the Supreme Court, States of the American- Union have not been 
forced before the court as defendants to take part in the trial of a case, nor 
has the execution of a judgment of that august tribunal against them been 
compelled by force. 

The moral of the Active was not lost upon the Congress, nor did the peti- 
tion of the Philadelphian merchants and citizens fall upon deaf ears. On 

1 See The United States v. Judge Peters, 5 Cranch, 115. 

2 When the District Court proceeded to execute this mandate, the Governor issued orders to 
General Bright, " directing him to call out a portion of the militia in order to protect the per- 
sons and property of the representatives of Rittenhouse against any process issued by the Dis- 
trict Court of the United States in pursuance of this mandamus. At first the marshal was 
prevented from serving the process by soldiers under the command of Bright, but subsequently, 
eluding their vigilance, he succeeded in taking into custody one of the defendants. A writ of 
habeas corpus, sued out on behalf of the prisoner, was, however, discharged by Chief Justice 
Tilghman, and subsequently General Bright with others were indicted in the Circuit Court of 
the United States for obstructing the process of the District Court. Mr. Justice Washington 
presided at the trial, which resulted in a verdict of guilty. The prisoners were sentenced to 
be imprisoned, and to pay a fine ; but were immediately pardoned by the President of the 
United States. Olmsted's Case. Brightb's Rep., 1. 

" This appears to have been the first case in which the supremacy of the Constitution v/as 
enforced by judicial tribunals against the assertion of State authority." (Mr. Justice Stanley 
Matthew's Address before the Yale Law School, June 26, 1888, pp. 19-20.) 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 223 

May 22, 1779, the very day on which the petition had been read, a resolution 
was introduced, recommending " that each state pass an act empowering Con- 
gress, in advance of the ratification of the Articles of Confederation, to erect 
a permanent court of appeals; but the resolution does not appear to have 
passed," for the reason, suggested by Professor Jameson, from whom the 
above passage is quoted, that " probably Congress felt that they would be 
taking a stronger position if they assumed the existence of such power, as 
derived from their ' supreme sovereign power of war and peace,' in much the 
same way as the power to hear such appeals by committee of Congress had 
been; probably also it despaired of securing such action on the part of all 
thirteen of the states." ^ 

But indeed, even earlier, the advisability of a court had been agitated, for 
on August 5, 1777, it was " Resolved, That Thursday next be assigned to take 
into consideration the propriety of estabHshing the Court of Appeals." Thurs- 
day came, but the court did not. The matter was postponed. In December 
of 1779, following the Philadelphian petition, an ordinance was drafted for a 
permanent court. As amended, it was passed on January 15, 1780, in the 
following form, a year in advance of the definitive adoption of the Articles 
of Confederation: 

Resolved, That a court be established for the trial of all appeals from 
the Courts of Admiralty in these United States, in cases of capture, to con- 
sist of three judges appointed and commissioned by Congress, either two oi 
whom, in the absence of the other, to hold the said court for the despatch 
of business ; that the said court appoint their own register ; that the trials 
therein be according to the usage of nations, and not by jury.^ 

It was also resolved : 

That the said judges hold their first session as soon as may be at Phila- 
delphia, and afterwards at such times and places as they shall judge most 
conducive to the public good, so that they do not at any time sit further 
eastward than Hartford in Connecticut, or southward than Williamsburg in 
Virginia.' 

On January 22d the Congress chose as the three judges of the court, George 
Wythe of Virginia, William Paca of Maryland, and Titus Hosmer of Con- 
necticut — an admirable personnel. Mr. W'ythe declining, Cyrus Griffin of 
Virginia was elected in his place on April 28th. Mr. Paca accepted on the 
9th of February, Mr. Hosmer and Mr. Griffin on the 4th of May.* 

The act of January 15, 1780, creating the court, did not provide for the 
transfer to it of the cases pending before the committee. On May 9th the 
case of Bragg v. The Sloop Dove ^ was brought on appeal before Congress. 

1 Jameson, Essays, p. 27. * Ibid., pp. xxv-xxvi. 

2 131 U. S., App., p. XXV. B lud., p. xliv. 

3 Ibid. 



224 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

It was referred to the new court and on May 24th Congress resolved " that 
the stile of the Court of Appeals appointed by Congress be ' the Court of 
Appeals in cases of capture ; ' that appeals from the Courts of Admiralty in 
the respective States be, as heretofore, demanded within five days after defini- 
tive sentence, and in future such appeals be lodged with the register of the 
Court of Appeals in cases of capture within forty days thereafter;" and 
" that all matters respecting Appeals in cases of capture now depending before 
Congress, or the Commissioners of Appeals, be referred to the newly erected 
Court of Appeals, to be there adjudged and determined according to law; and 
that all papers touching appeals in cases of capture lodged in the office of the 
Secretary of Congress, be delivered to and lodged with the register of the 
Court of Appeals." ^ Thus the first permanent tribunal of these United 
States was established. 

Mr. Davis, whose article entitled The Federal Courts Prior to the Adop- 
tion of the Constitution has largely served as the basis for the above re- 
marks, gives the following analysis of the work of the committees and of the 
court of appeals: 

Sixty-four cases in all were submitted to the committees of Congress, of 
which forty-nine were decided by them, four seem to have disappeared, and 
eleven went over to the Court of Appeals for decision. Fifty-six cases in 
all, including the eleven which went over, were submitted to the Court of 
Appeals, and all were disposed of. Appeals were heard from every mari- 
time State except New York. None came from that State ; doubtless be- 
cause its maritime counties were occupied by the enemy from the autumn 
of 1776 to the end of the war.^ 

After examining the records of the committee and of the court of appeals, 
and enumerating the cases in which the court of appeals filed written opinions, 
Mr. Davis thus closes his account of the cases ^ determined on appeal by the 
Congress, its permanent committee, and the federal Court of Appeals : 

They were properly placed in the volumes which contain the commence- 
ment of the series of Reports of the Supreme Court of the United States; 
for the court from which they proceeded was in its day the highest court 
in the country, and the only appellate tribunal with jurisdiction over the 
whole United States.* 

1131 U. S., App., p. xxvi. 

2 Ibid., p. xxxiv. 

3 So far as appears by these papers, no written reports in the nature of opinions were made 
by the committees. The Court of Appeals filed only eight opinions, all of which are reported 
in 2 Dall. 1-42, under the general title of " Federal Court of Appeals." These opinions were 
delivered in, (1) The Resolution, p. 1: and (2) 5". C, on rehearing, p. 19; date of lodgment 
not known; final decree January 24, 1782; — (3) The Erstern, p. 33; lodged January 11, 1781; 
final decree February 5, 1782: — (4) The Gloucester, p. 36; date of lodgment not known; 
final decree February 5, 1782:— (5) The Squirrel, p. 40, see No. 90 post in table:— (6) The 
Speedivell, p. 40; lodged June 17, 1783; decided May 24, 1784:— (7) Luke v. Hulbert, p. 41; 
no papers on file: — (8) The Experiment v. The Chester, p. 41; referred by Congress by the 
resolution of July 24, 1786, already spoken of; decided May 1, 1787. (Davis' note, p. xxxv.) 

*Ibid., p. xxxv. 



THE FIRST PERMANENT TRIBUNAL OF THE STATES 225 

As to the influence of the Court of Appeals, which went out of existence two 
days after the meeting of the memorable convention, which, as Professor 
Jameson says, " provided the United States with a more comprehensive and 
more effective judiciary," and its importance in the development of a perma- 
nent judiciary Professor Jameson writes: 

However this may be, it can not be doubted that the Court of Appeals, 
though, as remarked by counsel in Jennings v. Carson, " unpopular in those 
states which were attached to trial by jury," had an educative influence in 
bringing the people of the United States to consent to the establishment of 
such a successor. It could hardly be that one hundred and eighteen cases, 
though all in one restricted branch of judicature, should be brought by 
appeal from state courts to a federal tribunal, without familiarizing the 
public mind with the complete idea of a superior judicature, in federal 
matters, exercised by federal courts. The Court of Appeals in Cases of 
Capture may therefore be justly regarded, not simply as the predecessor, 
but as one of the origins, of the Supreme Court of the United States.^ 

^ J. Franklin Jameson, Essays, pp. 43-4. 



XI 
TEMPORARY JUDICIAL COMMISSIONS 

Difficulties and disputes that may arise between the subjects of the King and the in- 
habitants of the Swiss Cantons, shall be settled by the judgment of four men of standing, 
two of whom shall be named by each party; which four arbitrators shall hear, in an ap- 
pointed place, the parties or their attorneys; and, if they shall be divided in opinion, there 
shall be chosen from the neighboring countries an unbiassed man of ability, who shall 
join with the arbitrators in determining the question. If the matter in dispute is between 
a subject of the Cantons and Leagues and the King of France, the Cantons will examine 
the demand, and, if it is well founded, they will present it to the King; but, if the King is 
not satisfied with it, they may call the King before the arbitrators, who shall be selected 
from among impartial judges of the countries of Coire or of Valois, and whatever shall 
be decided by the aforesaid judges, by a judicial or amicable sentence, shall be inviolably 
observed without any revocation. (Treaty of Perpetual Peace betiveen France and the 
Swiss Cantons and their Allies, November 29, 1516, M. de Flassan, Histoire Gcnerale et 
Raisonnee de la Diplotnatie Franqaise, Depuis la fondation de la monarchie, jiisqu'd la 
fin du rcgne de Louis XVI, Vol. I, 1809, pp. 307-30S, English translation by John Bassett 
Moore, History and Digest of the International Arbitrations to which the United States 
has been a Party, Vol. V, 1898, p. 4830.) 

Arbitration is a method very reasonable, and very conformable to the law of nature, 
in determining all differences that do not directly interest the safety of the nation. 
Though the strict right may be mistaken by the arbitrator, it is still more to be feared that 
it vyill be overwhelmed by the fate of arms. The Swiss have had the precaution, in all 
their alliances among themselves, and even in those they have contracted with the neigh- 
bouring powers, to agree before-hand, on the manner in which their disputes were to be 
submitted to arbitrators, in case they could not adjust them in an amicable manner. This 
wise precaution has not a little contributed to maintain the Helvetic Republic in that 
flourishing state which secures its liberty, and renders it respectable throughout Europe. 
(M. de Vattel, The Law of Nations; or Principles of the Law of Nature: Applied to the 
Conduct and Affairs of Nations and Sovereigns, 1758, Translated from the French, Vol. I, 
1760, pp. 244-245-) 

XXVIII. Recites a seisure and detainer of English effects in the dominions of the 
King of Denmark, since the 18th of May, 1652. The States hereby oblige themselves to 
make the same good to the owners, to pay 5000 pounds English, to answer the expence of 
a proper enquiry, and 20,000 rixdollars to whom his Highness shall nominate immediately; 
which are to be deducted out of the gross sum to be awarded, and to enter into bonds of 
arbitration, in the penalty of 140.000, by proper persons in London, to answer the award. 

XXX. That four commissioners shall be named on both sides to meet at London, the 
19th of May next, who will be authorised to examine the injuries and losses in the year 
1611, and after to the 18th of May 1652, as in the East Indies, Greenland, Muscovy, Brasil, 
&c. That if the said differences be not adjusted in three months, to be computed from the 
said 18th day of May, in such case the same shall be submitted to the arbitration of the 
Swiss Cantons, who shall delegate commissioners for that purpose, and shall give judgment 
within six months; within which time whatever the majority of such commissioners deter- 
mine shall be binding to both parties, and duly performed. {Treaty of Peace and Union 
between Oliver Cromwell, as Protector of England, and the United Provinces of the Neth- 
erlands, at Westminster, April 5th, 1645, Charles Jenkinson, A Collection of all tlie Treaties 
of Peace, Alliance, and Commerce, between Great-Britain and other Powers, from the 
Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, pp. 
47-48.) 

XXIV. That the debts due to the English from the King, on account of the previous 
sequestration of their effects, shall be discharged within two years. And the recognizances 
made to the King or any of his subjects by the English shall be cancelled and rescinded. 

226 



TEMPORARY JUDICIAL COMMISSIONS 227 

XXV. The adjusting of all matters in dispute shall be referred to the arbitration of 
Dr. Walter Walker, John Crowther, Dr. Jeronimus a Silva, secretary of the embassy, and 
Francis Ferreira Rabello, agent thereof, who shall sit at London the 20th of July next, 
O. S. who shall deliver their sentence on or before the first day of September next. And 
the same being then undetermined, shall afterwards be referred entirely to the Protector's 
consul, whose award shall be final and decisive : and what shall on their decree be found 
justly due, shall be paid by an allowance or remittance of one moiety of the duties usually 
paid until the sum awarded be fully satisfied. 

The three last articles are general confirmations of the previous particulars, and limits 
the ratification to six months. {Treaty of Peace and Alliance between Oliver Cromwell, 
Protector of England, and John IV. King of Portugal, made at Westminster, July 10, 1654, 
Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and Commerce, 
between Great-Britain and other Powers, From the Treaty signed at Munster in 1648, to 
the Treaties signed at Paris in 1783, Vol. I, 1785, pp. 74-75.) 

XXIV. Whereas since the year 1640 many prizes have been taken on both sides, com- 
missioners shall be appointed to settle the same at London, and if they do not determine in 
six months and a fortnight, the city of Hamburg shall be desired to delegate commission- 
ers, whose arbitration shall be final, and their award made within four months; but if 
neither shall make an award, no force shall be used on either side until after the expira- 
tion of four months more. 

XXV. The right of either to the three forts of Pentacost, St. John, and Port Royal in 
America, shall be determined by the same commissioners. {Treaty of Peace between 
Louis XIV. King of France and Navarre, and the Lord Protector of the Republic of 
England, Scotland, and Ireland, at Westminster, November 3, 1655, Charles Jenkinson, A 
Collection of all the Treaties of Peace, Alliance, and Commerce, bcfween Great-Britain and 
Other Powers, from the Treaty signed at Munster in 164S, to the Treaties signed at Paris 
m 1783, Vol. I, 1785, pp. 84-85.) 

VII. Relates to the manner of adjusting differences and captures of either side, ac- 
cording to the tenor of the Xlllth article of the treaty of Upsal, and is only a repetition 
thereof, and an agreement, in case of the same not being affected for a future convention. 
(Treatv betiveen Charles Gustavus. Kina of Sweden, and Oliver Cromwell, Protector of 
England, whereby the Treaty of Alliance made between the said States, April 11, 1654. w 
confirmed and explained. Done at A\''estminster, Ju'y 15th. and the Convention annexed 
July 17, 1656. Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and 
Commerce between Great-Britain and other Powers, from the Treaty signed at Munster in 
1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, p. 99.) 

The United States in Congress assembled shall also be the last resort on appeal in all dis- 
putes and differences now subsisting or that hereafter may arise between two or more 
States concerning boundary, jurisdiction or any other cause whatever; which authority 
shall always be exercised in the manner following. Whenever the legislative or executive 
authority or lawful agent of any State in controversy with another shall present a petition 
to Congress, stating the matter in question and praying for a hearing, notice thereof shall 
be given by order of Congress to the legislative or executive authority, of the other State 
in controversy, and a day assigned for the appearance of the parties by their lawful agents, 
who shall then he directed to appoint by joint consent, commissioners or judges to con- 
stitute a court for hearing and determining the matter in question : but if they can not 
agree. Congress shall name three persons out of each of the United States, and from the 
list of such persons each party shall alternately strike out one, the petitioners beginning, 
until the numbers shall be reduced to thirteen ; and from that number not less than seven, 
nor more than nine names as Congress shall direct, shall in the presence of Congress be 
drawn out by lot, and the persons whose names shall be so drawn or any five of them, 
shall be commissioners or judges, to hear and finally determine the controversy, so always 
as a major part of the judges who shall hear the cause shall agree in the determination: 
and if either party shall neglect to attend at the day appointed, without showing reasons, 
which Congress shall judge sufficient, or being present shall refuse to strike, the Congress 
shall proceed to nominate three persons out of each State, and the Secretary of Congress 
shall strike in behalf of such party absent or refusing: and tha judgment and sen- 
tence of the court to be appointed, in the manner before prescribed, shall be final and con- 
clusive: and if any of the parties shall refuse to submit to the authority of such court, or 
to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce 
sentence, or judgment, which shall in like manner be final and decisive, the judgment or 
sentence and other proceedings being in either case transmitted to Congress, and lodged 
among the acts of Congress for the security of the parties concerned : provided that every 



228 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

commissioner, before he sits in judgment, shall take an oath to be administered by one of 
the judges of the supreme or superior court of the State where the cause shall be tried, 
" well and truly to hear and determine the matter in question, according to the best of his 
judgment, without favour, affection or hope of reward:" provided also that no State shall 
be deprived of territory for the benefit of the United States. 

All controversies concerning the private right of soil claimed under different grants of 
two or more States, whose jurisdiction as they may respect such lands, and the States 
which passed such grants are adjusted, the said grants or either of them being at the 
same time claimed to have originated antecedent to such settlement of jurisdiction, shall 
on the petition of either party to the Congress of the United States, be finally determined 
as near as may be in the same manner as is before prescribed for deciding disputes re- 
specting territorial jurisdiction between different States. {Articles of Confederation, 1777, 
Article IX, paragrat'h 2. Revised Statutes of the United States, 1878, pp. 9-10.) 

The agents attending, the Court pronounced the following sentence or judgment: 

This cause has been well argued by the learned counsel on both sides. 

The court are now to pronounce their sentence or judgment. 

We are unanimously of opinion, that the state of Connecticut has no right to the lands 
in controversy. 

We are also unanimously of opinion, that the jurisdiction and pre-emption of all the 
territory lying within the charter boundary of Pennsylvania, and now claimed by the state 
of Connecticut, do of right belong to the state of Pennsylvania. {State of Pennsylvania v. 
State of Connecticut, Court of Commissioners Under 9th of Articles of Confederation, 
Journals of the American Congress, edition of 1823, Vol. IV, p. 140, decided December 
30, 1782.) 

The great cause between Connecticut and Pennsylvania has been decided in favor of 
the latter. It is a singular event. There are few instances of independent states submit- 
ting their cause to a court of justice. The day will come when all disputes in the great 
republic of Europe will be tried in the same way, and America be quoted to exemplify the 
vvisdom of the measure. {Extract from letter of Robert R. Livingston, Secretary of For- 
eign Affairs, to La Fayette, January 10, 1783. Francis Wharton, The Revolutionary Diplo- 
matic Correspondence of the United States, Vol. VI, 1889. p. 202.) 



CHAPTER XI 

TEMPORARY JUDICIAL COMMISSIONS 

But the Court of Prize was neither the most interesting nor the most im- 
portant judicial organization, either for the people of the United States or for 
the world at large. But it was one of the origins of the Supreme Court. The 
other origin which is likely to prove further that the Revolutionary .statesmen, 
as well as the fathers of the Constitution, were benefactors of their kind, -was 
the machinery devised for the adjustment of quarrels between the States bv 
means of temporary commissions : 

The United States in Congress assembled shall also be the last resort on 
appeal in all disputes and differences now subsisting or that hereafter may 
arise between two or more States concerning boundary, jurisdiction or any 
other cause whatsoever ; . . . 

All controversies concerning the private right of soil claimed under differ- ^f^^J^ 
ent grants of two or more States, whose jurisdictions as they may respect Commissions 
such lands, and the States which passed such grants are adjusted, the said 
grants or either of them being at the same time claimed to have originated 
antecedent to such settlement of jurisdiction, shall on the petition of either 
party to the Congress of the United States, be finally determined as near as 
may be in the same manner as is before prescribed for deciding disputes 
respecting territorial jurisdiction between different States.^ 

The Articles of Confederation apparently considered the Congress as 
the successor of the King in Coimcil. They authorized it therefore 
to direct the agents of the States in controversy to appoint commissioners 
or judges to constitute a court for hearing and determining the matter in 
question. Failing their agreement, Congress was authorized to " name 
three persons out of each of the United States," that is to say, thirty-nine in 
all, from which list the agents of the parties, beginning with the defendant, 
should alternately strike a name until thirteen were left, from which seven or 
nine, in the direction of Congress, should be drawn by lot, of whom the per- 
sons whose names were drawn, or any five of them, should be commissioners 
or judges of the commission charged with the determination of the dispute. 
Upon the absence of one or the other party, or the refusal of one of the parties 
present " to strike," the secretary of the Congress was to strike in lieu thereof 
and the commissioners were thereupon to be selected in the manner above 

1 Article IX, Articles of Confederation, 1777. 

229 



230 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

described. The commissioners thus appointed formed the court which was to 
assume jurisdiction of the dispute, even although one party or the other might 
refuse to submit the case or appear or defend the claim. The court thus con- 
stituted was to proceed to pronounce final sentence or judgment, which, to- 
gether with the other proceedings, was to be transmitted to the Congress and 
by it filed for the security of the parties concerned. Each commissioner was 
to take an oath before a court of record in the State in which the cause was to 
be tried, to decide the controversy " according to the best of his judgment, 
without favor, affection, or hope of reward." And no State was to be " de- 
prived of territory for the benefit of the United States." 

It was natural that the States which, as has been pointed out, had renounced 
the right to enter into compacts and to conclude agreements, which maintained 
armaments merely for defensive purposes, and which had renounced the right 
to resort to war against one another, should have found it necessary to devise 
a method of settling the disputes which had frequently arisen between and 
among them, and which were certain to arise again in the matter of boundaries. 
It was also natural that the Congress should take advantage of this certainty 
to provide a method for settling boundary disputes which might arise 
between the States. It was further natural that they should adopt the 
Influence method of the Privy Council, which either settled the disputes itself or referred 

them to committees or to courts, as the case might be, and that the States 
should adapt the machinery at hand to their own circumstances and needs. 
Professor Jameson has called attention to the striking resemblance between 
the method of the Articles of Confederation and that devised by Grenville's 
Act of 1770 for the trial of disputed elections. His language is so in point, 
and is so capable of a larger application, that it is quoted in full : 

It seems obvious that we have here a reproduction of the machinery pro- 
vided by Mr. Grenville's famous Act of 1770 for the trial of disputed elec- 
tions to the House of Commons. Up to that time, disputed elections had for 
nearly a century been passed upon by the whole House. The natural result 
of such a procedure was a scandalous disregard of justice, those contestants 
who belonged to the majority party being uniformly admitted, their com- 
petitors as uniformly rejected. To remedy this abuse, Mr. Grenville's act 
provided that forty-nine members should be chosen by ballot, and that from 
this Hst the petitioner and the sitting member should strike out names alter- 
nately until the number was reduced to thirteen, — a process which later 
became known, in the slang of the House, as " knocking out the brains of the 
committee," each contestant excluding any able man likely to assist the cause 
of his opponent. These thirteen, with an additional member nominated by 
each contestant, constituted the authoritative tribunal. The act, celebrated 
at the time, was of course perfectly well known to lawyers in America six 
years after its passage. It seems plain that, with the natural substitution of 
thirty-nine for forty-nine, we have, in this peculiar process established shortly 
before in England, the model on which Congress framed its scheme for con- 



Council 



TEMPORARY JUDICIAL COMMISSIONS 231 

stituting temporarily a judiciary body when one was required for land 
disputes.^ 

The history of the proceedings under this portion of the ninth Article of 
Confederation is quickly told. One commission or court was constituted by 
the agents of the parties under the article, and this commission decided the 
one case which the article has to its credit. A temporary tribunal was formed 
in three additional instances, in one of which the agents of the parties were 
unable to agree upon the personnel, and resort was therefore had to the method 
of striking provided by the article.^ In these three instances the cases w^ere 
settled out of court by the parties themselves. Petitions to form tribunals 
were presented to Congress in other cases, but no courts were created, and 
upon the dissolution of the Confederation some eleven boundary disputes were 
outstanding and unsettled.^ The one cause actually decided by commissioners 
or judges in the manner provided by the ninth article, is, however, a very 
famous case, in which blood had flowed, which of itself was sufficient to 
show the disadvantages of the old method, or rather of no method, and the 
possibilities of the new system. 

Upon the signature of the Articles of Confederation by Maryland on the ^'""cl^nectku 
1st day of March, 1781, they became the law of the land, and shortly there- 
after Pennsylvania took advantage of the ninth of the articles in order to settle 
a dispute with Connecticut concerning a large strip of territory on the east 
bank of the Susquehanna River, and which today forms the County of Luzerne 
in the State of Pennsylvania. As the matter is thus important, and the details 
of the procedure interesting, some relevant passages are quoted from the docu- 
ments in this case. The Journal of Congress on November 3, 1781, contains 
the following entry : 

A petition from the supreme executive council of the Commonwealth of 
Pensylvania was read, stating a matter of dispute between the said State 
and the State of Connecticut, respecting sundry lands lying on the east branch 
of the River Susquehanna, and praying a hearing in the premises, agreeably 
to the 9th article of the Confederation.* 

On the 14th of the same month, Congress assigned the fourth Monday in the 
following June for the appearance of the States by their lawful agents, and 
issued notice thereof in the following form to the States in controversy : 

To the legislative authority of the State of Connecticut [Pennsylvania] : 

^ J. Franklin Jameson, Essays in the Constitutional History of the United States, 
pp. 44-5. 

2 J. C. Bancroft Davis, Federal Courts Prior to the Adoption of the Constitution, 131 
U. S., Appendix, p. Ixiii. 

' Ibid., p. xxxiv. 

* Journals of the Continental Congress, Vol. xxi, p. 1092. 



232 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

It is hereby made known, that pursuant to the ninth article of the Con- 
federation, the supreme executive council of the State of Pensylvania, have 
presented a petition to Congress, stating that a controversy has long subsisted 
between the said State of Pensylvania, and the State of Connecticut, respect- 
ing sundry lands lying within the northern boundary of the said State of 
Pensylvania, and praying for a hearing in pursuance of the ninth article of 
the Confederation ; and that the 4th Monday in June next, is assigned for the 
appearance of the said States of Pensylvania and Connecticut, by their law- 
ful agents, at the place in which Congress shall then sit, to proceed in the 
premises as by the said Confederation is directed.^ 

On the appointed day the States appeared by their agents: for Pennsyl- 
vania, Messrs. William Bradford, Joseph Reed, James Wilson and Jonathan 
Dickinson Sergeant, and their credentials were spread upon the Journal.^ 
For Connecticut, Eliphalet Dyer appeared and presented credentials, likewise 
spread upon the Journal, showing the appointment as duly accredited agents 
of that State, Messrs. Eliphalet D)''er, William Samuel Johnson and Jesse 
Root.^ On June 27th Connecticut moved to postpone the proceedings until 
" after the termination of the present war." * This motion was denied. On 
the 16th of July the agents of the two States were directed " to appoint, by 
joint consent, commissioners or judges to constitute a court for hearing and 
determining the matter in question, agreeably to the 9th Article of the Con- 
federation." ^ The agents complied with this direction and, on August 12th, 
Congress was informed by a paper signed by the agents of the contending 
States, and spread upon the Journal, that they had agreed upon William 
Whipple of New Hampshire, Major General Nathaniel Greene of Rhode 
Island, David Brearley and William Churchill Houston of New Jersey, Cyrus 
Griffin and Joseph Jones of Virginia, and John Rutledge of South Carolina, 
any five or more of whom were to constitute the court and to have authority 
to proceed and to determine the matter and difference between the States.^ 
It was further agreed by and between the agents of the litigating States that 
the court should assemble at Trenton, N. J., on the 12th day of November.'^ 
On August 2i, 1782, the agents reported to Congress that General Greene could 
not attend, that Mr. Rutledge had declined, and that they had therefore chosen 
Thomas Neilson of Virginia and Welcome Arnold of Rhode Island in their 
stead. Congress thereupon directed commissions to issue to the judges ac- 
cording to the amended list, and on the 28th af the same month the form of 
commission was settled and spread upon the Journal.^ 

''■Journals of the Continental Congress, Vol. xxi, p. 1116. 

^Ihid., Vol. xxii, p. 345. Session of June 24, 1782. 

3 Ibid., p. 347. 

*/&iU, p. 355. 

5 Ibid., p. 392. 

^ Ibid.. Vol. xxiii, p. 461. 

T Ibid., p. 529. Session of August 23, 1782. 

8 Ibid., p. 533. 



TEMPORARY JUDICIAL COMMISSIONS 233 

It was finally agreed by and between the parties litigant that the court 
should assemble at Trenton, N. J., on the 12th of November of the same year. 
The court convened on the day assigned, November 12th, at Trenton, with 
only Messrs. Brearley and Houston present.^ They adjourned from day to 
day to the 18th, when enough members being present, the court was organized, 
with Messrs. Whipple, Arnold, Brearley, Houston and Griffin in attendance 
as members. On the 22d of the month the agents on each side put in a 
written brief, showing the claims of their respective States, based in each case 
upon charters from the mother country. We have the word of the commis- 
sioners that the case was equally well argued on both sides, and we have their 
unanimous opinion in behalf of the State of Pennsylvania — for the commis- 
sioners had agreed that the minority should yield to the majority, so that 
the decision might be unanimous, and in framing their view they apparently 
heeded the sage advice of my Lord Mansfield to a lawyer turned judge and 
not very well grounded in the law, to abstain from reasons for his judgment. 
The award of the court follows in full : 

The court met — Present as before. 

The agents attending, the Court pronounced the following sentence or 
judgment : 

This cause has been well argued by the learned counsel on both sides. 

The court are now to pronounce their sentence or judgment. 

We are unanimously of opinion, that the state of Connecticut has no right 
to the lands in controversy. 

We are also unanimously of opinion, that the jurisdiction and pre-emption 
of all the territory lying within the charter boundary of Pennsylvania, and 
now claimed by the State of Connecticut, do of right belong to the state of 
Pennsylvania.^ 

The commissioners were of the opinion, as stated in a communication dated 
December 31, 1782, addressed to John Dickinson, then President of Pennsyl- 
vania, that the question for them to decide, and actually decided by them, was 
the right of Pennsylvania to the soil in its title of sovereign, and that the 
claims of individuals to the soil whether based upon grants from Connecticut 
or from Pennsylvania were unaffected by the decision. The Honorable Cyrus 
Griffin, the fifth member of the court, made a similar statement in a letter 
dated September 15, 1796, and vouchsafed the following interesting informa- 
tion concerning the procedure of the commissioners in the trial and disposition 
of the case : 

Before the commissioners determined that important contest between 
Pennsylvania and Connecticut, it was agreed : 

1st. That the reasons for the determination should never be given. 

1 Davis, Federal Courts, 131 U. S., Appendix, p. Iv. 

2 Journals of the American Congress, 1823, Vol. IV, p. 140. 



234 



THE UNITED STATES." A STUDY IN INTERNATIONAL ORGANIZATION 



Two 

Other 

Cases 



2nd. That the minority should concede the determination as the unanimous 
opinion of the court. 

No doubt sufficient reasons appeared to us to adopt these preliminary 
points. . . . 

But I can assure you, sir, that the commissioners were unanimously of 
opinion that the private right of soil should not he affected by the decision. 
The decision was not to reach the question of property in soil?- 

The international significance of the strange and novel experience of a 
State appearing against a State in a tribunal of justice was not lost upon 
the public men of the day. No less a personage than Robert R. Livingston^ 
then Secretary for Foreign Affairs of the Confederation, thought it of suffi- 
cient moment to refer to it in a letter dated January 10, 1783, addressed to 
the Marquis of Lafayette, in which he felt justified in saying: 

The great cause between Connecticut and Pennsylvania has been decided 
in favor of the latter. It is a singular event. There are few instances of 
independent states submitting their cause to a court of justice. The day 
will come, when all disputes in the great republic of Europe will be tried in 
the same way, and America be quoted to exemplify the wisdom of the 
measure.^ 

The cases of Massachusetts v. New York ^ and South Carolina v. 
Georgia^ were disputes in which commissioners were appointed and courts 
constituted for the trial of the causes in accordance with the ninth of the 
Articles of Confederation, and although the cases never came to trial, as the 
disputes w^ere settled out of court, they are interesting, inasmuch as the case 
of Massachusetts v. New York is the only one in which a court had been 
appointed by agreement of the agents which did not come to trial; and the 
case of South Carolina v. Georgia is interesting and important in that it is 
the only case or controversy between the States under the ninth article in which 
the agents were unable to agree upon the members to form the court, and 
therefore the only one in which resort was had to the method of striking pro- 
vided by the ninth article. The facts and procedure in these cases will there- 
fore be briefly stated. 

On June 3, 1784, Congress received the report of the committee to which 
it had referred " a petition from the legislature of the Commonwealth of 
Massachusetts, praying that a Federal Court may be appointed by Congress 
to decide a dispute between the said Commonwealth and the State of New 
York," ^ and tlie Congress resolved " that the first Monday in; December next 

1 Henry M. Hoyt, Brief of a Title in the Seventeen Townships of the County of 
Luserne, a Syllabus of the Controversy between Connecticut and Pennsylvania, 1879, pp. 
45, 46. 

- Francis Wharton, Diplomatic Correspondence of the American Revolution, Vol. 6, p. 
202. See also Jared Sparks, The Diplomatic Correspondence of the American Kevolvdion. 
(1830), Vol. X, p. 21. 

3 131 U. S., Appendix, p. Ixi. 

^ Ibid., p. Ixii. 

^ Ibid., p. Ixi. 



TEMPORARY JUDICIAL COMMISSIONS 235 

be assigned for the appearance of the said States of Massachusetts and New- 
York by their lawful agents, at the place at which Congress shall then be 
sitting." ^ 

From the petition of the State of Massachusetts, it appeared that this 
State claimed the tract of land between 42° 2' N. and 44° 15' N., which 
extended westwardly, in accordance with the terms of its charter, to the 
" Southern Ocean," which contention was denied by the State of New York 
as inconsistent with its charter. Therefore, on December 8, 1784, the litigat- 
ing States appeared by their agents and presented their credentials, which 
were spread upon the Journal. The credentials of each were, by direction of 
Congress, examined by the agents of the two States and found to be without 
objection, whereupon, on December 10th, the agents were " directed to appoint, 
by joint consent, commissioners or judges to constitute a court for hearing 
and determining the matter in question, agreeable to the 9th of the articles 
of confederation and perpetual union." ^ The agents complied with the direc- 
tion of Congress, and on June 9, 1785, the agents of the two States, namely, 
John Jay, Robert R. Livingston and Walter Livingston, on behalf of New 
York, and John Lowell, James Sullivan, Theophilus Parsons, Rufus King and 
S. Holton, on behalf of Massachusetts, informed Congress, in a paper to 
which they affixed their signatures, that they had selected as judges, Thomas 
Johnson, George Wythe, George Reed, James Monroe, Isaac Smith, \\'illiam 
Patterson, Samuel Johnson, William Fleming and John Sitgreaves.^ The 
agents requested that commissions might be issued to the judges and that they 
be notified to meet at Williamsburg, Va., on the third Tuesday of November 
next, to hear and determine the controversy. The court, however, did not 
meet, as appears from the following resolution of the Congress of October 
8, 1787: 

Whereas it appears by the journals of Congress that a federal court has 
been instituted pursuant to the articles of confederation and perpetual union, 
to hear and determine a controversy respecting territory between the states 
of Massachusetts and New York; and whereas it appears by the representa- 
tions of the delegates of the said states in Congress that the said controversy 
has ceased, and the same has been settled and determined by an agreement 
entered into on the 16th day of December last, by the agents of the said 
States, and any further proceedings in or relative to the aforesaid court 
having become unnecessary. 

Resolved, That all further proceedings in and relative to the said federal 
court, as also the commissions of the judges thereof, cease and determine.* 

The agreement between the two States was spread at length upon the Journal 

1 Ibid., p. Ixi. 

2 Journals of the American Congress, Vol. iv, p. 453. 
» Ibid., p. 536. 

* Ibid., p. 7&7. 



236 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of the Congress, in accordance with the provisions of the ninth article, that 
" the judgment or sentence and other proceedings being in either case trans- 
mitted to Congress, and lodged among the acts of Congress for the security 
of the parties concerned." 

Almost a year to the date, namely, on June 1, 1785, after the case of 
Massachusetts v. New York had been brought before the Congress, that body 
resolved that " the second Monday in May next be assigned for the appear- 
ance of the states of South-Carolina and Georgia, by their lawful agents; 
and that notice thereof, and of the petition of the legislature of the state of 
South-Carolina, be given by the secretary of Congress, to the legislative au- 
thority of the state of Georgia." -"^ As in the case of Massachusetts v. New 
York, the form of notice contained a copy of South Carolina's petition, from 
which it appeared that South Carolina claimed certain lands lying between 
North Carolina and a line to be run due west to a certain spot said to be the 
head of the Savannah River, a contention denied by Georgia, which insisted 
that the source of the Keowee River is to be considered as the head of the 
Savannah.^ South Carolina also claimed the lands between a line drawn 
from the head of St. Mary River, the head of the Altamaha, the Mississippi 
and Florida, alleging that such lands were within the limits of its charter, and 
that they were not annexed to Georgia by the proclamation of the King of 
Great Britain, a contention denied by Georgia, which claimed the lands by 
virtue of such proclamation. 

The agents who were to appear in the month of May did not do so, 
because the time had been extended. They appeared, however, on Septem- 
ber 4, 1786, the date agreed upon, at which time they produced their creden- 
tials, which were spread in full upon the Journal. They were then directed 
by the Congress, as in the other cases, " to appoint, by joint consent, commis- 
sioners or judges to constitute a court for hearing and determining the matter 
in question, agreeable to the 9th of the articles of confederation and perpetual 
union." ^ The agents were less fortunate than in the case of Pennsylvania v. 
Connecticut and Massachusetts v. New York, in that they were unable to agree 
upon the members of the court. They therefore prayed Congress to proceed 
to strike a court agreeable to the Articles of Confederation. The Congress 
complied with this request, and on the 13th the agents of the States attended. 
On motion of the delegates of Georgia it was thereupon " Resolved, That 
Congress proceed to strike a court in the manner pointed out by the confedera- 
tion." * Three persons were thus named from each of the States, and from 
the list of persons thus named each party alternately struck until the number 

1 Journals of the American Congress, Vol. iv, p. 529. 

2 131 U. S., App., p. Ixii. 

^Journals of the American Congress, Vol. iv, p. 693. 
*Ibid., p. 696. 



TEMPORARY JUDICIAL COMMISSIONS 237 

was reduced to thirteen. After this, upon motion from the delegates of 
South Carolina, the thirteen names were put in a box and the following nine 
were drawn out in the presence of Congress : Alexander Contee Hanson, 
James Madison, Robert Goldsborough, James Duane, Philemon Dickinson, 
John Dickinson, Thomas McKean, Egbert Benson and William Pynchon.^ 
The next day the delegates of Georgia moved that the court be held at the 
City of New York on the first Monday of May, 1787. The delegates from 
South Carolina proposed to substitute for this date the third Monday of 
November of the current year. The amendment failed, and the court was 
therefore directed to meet as proposed by the State of Georgia.^ 

The membership. of this court was certainly such as to satisfy the most 
exacting requirements. It contained, as did the court in the case of Massa- 
chusetts V. New York, the name of a future president, and the gentleman 
who can in all probability be considered as the father of the Constitution, 
James Madison; John Dickinson, a member of the Continental Congress, who 
had refused to sign the Declaration of Independence because he believed it 
was inexpedient at the time and under the circumstances, but who enlisted and 
served as a private in the army after the Declaration had been proclaimed, 
who drafted the Articles of Confederation under which the proceeding was 
to take place, and who later was an influential member of the Constitutional 
Convention; Thomas McKean, Chief Justice of the Supreme Court of Penn- 
sylvania and Governor of that State; Egbert Benson, Attorney General of 
New York, later a Justice of the Supreme Court of the State and a judge of 
the Circuit Court of the United States. The court, however, seems not 
to have met, and the difference was settled by compact between the States 
dated February 24, 1787, as appears from the first and second articles thereof, 
to be found in the case of South Carolina v. Georgia, recorded in 93 United 
States Reports, pp. 5-6. 

These are, so far as known, the only cases of dispute between the States 
which were submitted, or prepared for submission, to temporary tribunals 
appointed according to the provisions of the ninth of the Articles of Confedera- 
tion. In the first case, that of Pennsylvania v. Connecticut, the court was ap- 
pointed by consent of the parties and rendered judgment. In the second, 
that of Massachusetts v. New York, a court was indeed appointed by consent 
of the parties, in accordance with the provisions of the ninth article, but the 
controversy was settled out of court. In the case of South Carolina v. Georgia 
a court was also appointed under the ninth article, but as the agents were unable 
to agree upon the commissioners or judges, they were chosen by the method 

^Ibid., p. 696. 
2 Ibid., p. 697. 



238 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Significance 
of the 
Temporary 
Tribunals 



Other 
Appeals to 
Congress 



Dispute 
Involving 
the Existence 
of a State 



of the ninth article, devised to enable a court to be constituted when the States 
in controversy were unable to agree upon its composition. We thus have, in 
these three cases, a demonstration of the possibilities of peaceable settlement: 
first, where the parties agree upon the court, which actually renders a decision ; 
second, where the parties, knowing that the controversy is to be settled by 
the court, reach an agreement, which appears to have been impossible without 
the existence of the court; and third, where the court has been constituted 
without the agreement of the parties, according to a method known in advance 
and, as in the previous case, an agreement is reached because of the existence 
of the tribunal and without recourse to its judgment. 

In three other cases the action of Congress was invoked, namely, the 
controversy between New Hampshire and Vermont, New York and Vermont, 
and Massachusetts and Vermont,^ arising out of the so-called New Hampshire 
grants ; the case of Pennsylvania v. Virginia ^ and the case of New Jersey v. 
Virginia.^ In no one of these was a court appointed, but as they are inter- 
esting because of the reference to Congress, they will be briefly mentioned, 
in order that all known cases under the ninth article may be noted. 

The case of the New Hampshire grants is very complicated, and it is re- 
ferred to largely as showing the solicitude of the Congress, as the successor 
of the King in Council, that a dispute involving three States and a claimant 
to statehood should be peaceably settled. It is also referred to, as showing 
the impracticability if not futility of supposing that a community would submit 
to the arbitrament of a temporary tribunal the question of its existence or 
right to exist, for the statehood of Vermont hung in the balance. 

New York claimed to the Connecticut River. In 1750, as recorded by 
the historian Bancroft, " New York carried its claims to the Connecticut 
river ; France, which had command of Lake Champlain, extended her preten- 
sions to the crest of the Green Mountains ; while Wentworth, the only royal 
governor in New England, began to convey the soil between the Connecticut 
and Lake Champlain by grants under the seal of New Hampshire." * These 
grants are therefore known as the New Hampshire grants. In 1764 the 
King in Council, according to the same historian, " dismembered New Hamp- 
shire, and annexed to New York the country north of Massachusetts and 
west of Connecticut river. The decision was declaratory of the boundary; 
and it was therefore held by the royalists that the grants made under the 
sanction of the royal governor of New Hampshire were annulled." ^ How- 
ever, the towns and villages in dispute were settled largely by New Englanders 

1 131 U. S., Appendix, p. 1. 

2 Ibid., p. liii. 

3 Ibid., p. Iviii. 

* George Bancroft, History of the United States of America, 1883 ed., Vol ii, p. 36L 
B Ibid., Vol. iii, p. 87. 



TEMPORARY JUDICIAL COMMISSIONS 239 

under the New Hampshire grants. In 1775, again to quote Bancroft, "the 
court of common pleas was to be opened by the royal judges in what was called 
the New York county of Cumberland, at Westminster, in the New Hampshire 
Grants, on the eastern side of the Green Mountains. To prevent this asser- 
tion of the jurisdiction of New York and of the authority of the king, a body 
of young men from the neighboring farms on the thirteenth of March took 
possession of the court-house. The royal sherifif, who, against the wish of 
the judges, had raised sixty men armed with guns and bludgeons, demanded 
possession of the building; and, after reading the riot act and refusing to 
concede terms, late in the night ordered his party to fire. . . . The act closed 
the supremacy of the king and of New York to the east of Lake Champlain." ^ 

The settlers of the Green Mountains organized themselves as a State, under 
the name of Vermont, and in convention on the 15th day of January, 1777,^ 
declared their independence of New York. In the following July a convention 
assembled at Windsor, adopted a constitution, which was accepted by the 
legislature and declared to be a part of the laws of the State. ^ 

It is clear from this brief statement that Massachusetts was not vitally 
interested, as the land lay to the north of its territory under the charter. It 
is clear that New York was vitally interested, as, if its contention were 
allowed, it would receive a very considerable extension of desirable territory. 
It is also evident that New Hampshire was even more interested because, if 
the contention of New York were granted, or if the settlers in Vermont had 
their way, the authorities of New Hampshire would lose title to a territory 
which they had possessed and which they naturally sought to retain. Finally, 
the settlers of Vermont were or were not a State, according as the case turned 
out. 

A secret agreement between New York and New Hampshire to divide 
the territory in dispute did not result as anticipated by the two conspirators, 
owing to the resistance and the determination of " the Green Mountain boys," 
who showed their mettle by the defeat of the Hessians belonging to Burgoyne's 
army at the battle of Bennington. Unable to reach a settlement by direct 
negotiation, or even by secret agreement providing for dismemberment, New 
fYork bethought itself of the Congress, doubtless hoping that from the suc- 
cessor of the King in Council it would obtain a confirmation of title to the 
territory it had acquired by the decision of the King in Council in 1764.* 
On May 22, 1779, the day on which the petition from the merchants and 
citizens of Philadelphia had been read to provide a court of appeals in prize 
cases, the delegates of New York in the Congress moved a series of resolutions 

^ Ibid., Yol iv, p. 142. 

2 Ibid., Vol. V, p. 157. 

^ Ibid., -p. 161. 

*Acts of the Privy Council, Colonial Series, Vol. iv, pp. 673-4. 



240 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

relating to the controversy.^ On September 24th of that year it was "Re- 
solved, unanimously, That it be, and hereby is, most earnestly recommended to 
the states of New Hampshire, Massachusetts Bay, and New York, forthwith 
to pass laws expressly authorizing Congress to hear and determine all differ- 
ences between them relative to their respective boundaries, in the mode pre- 
scribed by the articles of confederation, so that Congress may proceed thereon 
by the first day of February next at the farthest: and further, that the said 
states of New Hampshire, Massachusetts Bay, and New York, do, by express 
laws for the purpose, refer to the decision of Congress all differences or 
disputes relative to jurisdiction, which they may respectively have with the 
people of the district aforesaid, so that Congress may proceed thereon on the 
first day of February next." ^ It was necessary for Congress to proffer such 
a request, inasmuch as it did not possess the authority to form a committee 
by " striking," at the request of the State of New York, because the Articles 
of Confederation were not then the law of the land. If they had been in 
effect, the situation would have been wholly different. 

On October 2, 1779, the States were again urged "to authorize Congress 
to proceed to hear and determine all disputes subsisting between the grantees 
of the several states aforesaid, with one another, or with either of the said 
states, respecting title to lands lying in the said district, to be heard and deter- 
mined by ' commissioners or judges,' to be appointed in the mode prescribed 
by the ninth article." ^ New York, having everything to gain, and New 
Hampshire, hoping to regain what would be lost either to New York or the 
people of Vermont if its contention were not sustained, enacted the necessary 
legislation.* Massachusetts, as above stated, had no real interest in the ques- 
tion, but the people of Vermont had to be reckoned with, and having organized 
themselves as a State, they were unwilling to have what they considered their 
l&nds voted away by acts of the legislatures of the claimant States, or by act 
of Congress. Their opposition undoubtedly prevented the appointment of a 
court, for none was constituted, and although, in the month of September, 
1780, agents of New York laid their case before Congress,^ claiming that from 
1764 to 1777 the people of the territory in dispute were represented in the 
legislature of New York and submitted to its authority, although the agents 
of New Hampshire, in the same month, presented its case to the Congress,^ 
maintaining that the tract lay within the limits of New Hampshire and that 

^Journals of the Continental Congress, Vol. xiv, pp. 631-3. 
2 Ibid., Vol. XV, pp. 1096-7. 
^Ibid., p. 1135. 

*Act of New York, Oct. 21, 1779. Papers of the Continental Congress, No. 40, I; folio 
269; Act of New Hampshire, November, 1779, folio 563. 

^Journals, Vol. xviii, pp. 841, 843. Sessions of September 19 and 20, 1780. 
«Ibid., p. 868. Session of September 27, 1780. 



TEMPORARY JUDICIAL COMMISSIONS 241 

the people inhabiting it had no right to a separate and independent existence, 
the Congress did not, because it could not, take action. The case had ceased, 
by the action of the settlers of Vermont, to be one of law, it had become one 
of force ; it was no longer a matter for the courts ; it had become a political 
instead of a judicial question. 

The only solution compatible with peaceful settlement was apparently 
the recognition of the independent statehood of the settlers. This Massachu- 
setts and New Hampshire did in 1781 and New York in 1790, and the contro- 
versy was settled in the end, as it should have been and was foredoomed to 
be settled in the beginning, by the admission of Vermont as a State of the 
American Union on February 18, 1791.^ While the reasons for the failure 
of the Congress to appoint a court can be deduced from the mere statement 
of the facts, we nevertheless have them stated by a contemporary, whose 
word carries great weight. Thus, Alexander Hamilton wrote in The 
Federalist: 

Those who had an opportunity of seeing the inside of the transactions, 
which attended the progress of the controversy between this state [New 
York] and the district of Vermont, can vouch the opposition we experienced, 
as well from states not interested, as from those which were interested in the 
claim ; and can attest the danger to which the peace of the confederacy might 
have been exposed, had this state attempted to assert its rights by force. . . . 
New-Jersy and Rode-Island, upon all occasions, discovered a warm zeal 
for the independence of Vermont; and Maryland, until alarmed by the ap- 
pearance of a connection between Canada and that place, entered deeply 
into the same views.- 

On December 27, 1779, the following entry in the Journals of Congress 
shows that a dispute had arisen between Pennsylvania and Virginia, and the p^^^ ^^^^.^ 
action which the Congress, as the apparent successor of the King in Council "■ ^'fs'nia 
thought should be taken : 

Whereas it appears to Congress, from the representation of the delegates 
of the State of Pensylvania, that disputes have arisen between the states of 
Pensylvania and Virginia, relative to the extent of their boundaries, which 
may probably be productive of serious evils to both states, and tend to lessen 
their exertions in the common cause : therefore, 

Resolved, That it be recommended to the contending parties not to grant 
any part of the disputed land, or to disturb the possession of any persons 
living thereon, and to avoid every appearance of force until the dispute can 
be amicably settled by both states, or brought to a just decision by the inter- 
vention of Congress ; that possessions forcibly taken be restored to the 
original possessors, and things placed in the situation in which they were at 
the commencement of the present war, without prejudice to the claims of 
either party.^ 

1 1 Stat, 191. 

2 The Federalist, 1802 ed., Vol. i, pp. 36-7. Paper vii. 

^Journals of the Continental Congress, Vol. xv, p. 1411. 



242 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The Congress was naturally desirous, as appears from the resolution, that the 
dispute be amicably settled by both States or brought to a just decision by 
the intervention of Congress, and, in order to render this possible, recom- 
mended the maintenance of the status quo pending settlement. The States in 
controversy, interested in the common cause, seem to have acted in accordance 
with the desires of Congress, although it does not appear how and to what 
extent its advice was followed, as there is no further reference to the case in 
the records of that body. An agreement for settlement was made in Balti- 
more on August 31, 1779,^ in pursuance of which commissioners were ap- 
pointed on the part of Pennsylvania and Virginia. In consequence of this 
action on the part of the States, " the line commonly called Mason and Dixon's 
line " was " extended due west five degrees of longitude," " from the river 
Delaware for the southern botindary of Pennsylvania," and " a meridian line 
drawn from the western extremity thereof to the northern line of the State " 
became the western boundary. On the 23d of August, 1784, the commission 
reported that the Ohio River was reached.^ 

The cession to the United States, dated March 1, 1784,^ by Virginia of its 
claims to all territory from the northern bank of the Ohio lessened the interest 
which the Old Dominion, as Virginia is affectionately called by its citizens, 
might otherwise have had, not only in the prolongation of the line but in the 
prolongation of the controversy. 

The last case coming before the Congress in which a request was made, 
and the only one in which the Congress refused the petition to appoint a court 
in accordance with the ninth article, was a controversy between New Jersey 
and Virginia.'* The dispute was ended, if indeed it can properly be said 
to have begun, by the cession of Virginia's claims to the Northwest Territory 
on the 1st of March, 1784. The facts of the case, however, are interesting, 
as showing the magnitude of the cases referred to the Congress, because the 
territory in question was a large tract of land called Indiana, located between 
the Little Kennawa, the Monongahela and the southern boundary of Pennsyl- 
vania. A memorial was presented to Congress on September 14, 1779,^ by 
one George Morgan, as agent for the proprietors of this tract, claiming that 
his principals had acquired the tract of land by purchase from the Six Nations 
and other Indians, that after the purchase of the lands they had been with- 
drawn from the jurisdiction of Virginia by the King in Council, but that Vir- 
ginia, having resumed jurisdiction thereof, was about to order sales to be 
made within the district in question. The memorial prayed that, as in the 

1 131 U. S., Appendix, p. Hii. 

2 Ibid., p. liv. 

3 Bancroft, History of the United States, Vol. vi, pp. 115-6. 

4 131 U. S., Appendix, p. Iviii. 

'^Journals of the Continental Congress, Vol. xv, pp. 1063^. 



TEMPORARY JUDICIAL COMMISSIONS 243 

case of Pennsylvania v. Virginia, the sales might be restrained and the status 
quo preserved until the matter could be heard by Congress. Leaving out 
various petitions to the Congress, it is sufficient for present purposes to say that 
a petition of Colonel George MoVgan, as agent for the State of New Jersey, 
was presented to, read and considered by Congress while that body had before 
it, but before it had adopted the territorial cession of Virginia, whose accept- 
ance by the Congress on behalf of the United States would end the controversy 
in so far as Virginia was concerned. The petition is interesting as it was an 
attempt on the part of a State to enable its citizens to present a claim to the 
Congress and to have a court appointed for the determination of land not 
claimed as belonging to the State of New Jersey as such, but to land acquired 
by some of its citizens whose ^cause New Jersey espoused by virtue of their 
citizenship. In view, therefore, of these facts and of this action of the State 
of New Jersey, which is capable of a larger application, the material portion 
of the petition is here set forth : 

To the United States of America, in Congress assembled, 
The petition of Colonel George Morgan, agent for the State of New 
Jersey respectfully sheweth ; that a controversy now subsists between the 
said State and the Commonwealth of Virginia respecting a tract of land 
called Indiana, lying on the river Ohio, and being within the United States: 
That your petitioner and others, owners of the said tract of land, labor under 
grievances from the said Commonwealth of Virginia, whose legislature has 
set up pretensions thereto : That in consequence of instructions from the 
legislature of New Jersey to their delegates in Congress, anno 1781, and the 
petitions of Indiana proprietors, anno 1779, 1780 and 1781, a hearing was 
obtained before a very respectable committee of Congress, who, after a full 
and patient examination of the matter, did unanimously report . . . that the 
purchase of the Indiana Company was made bona fide for a valuable con- 
sideration, according to the then usage and custom of purchasing lands from 
the Indians, with the knowledge, consent and approbation of the Crown 
of Great Britain and the then governments of New York and Virginia: 
That notwithstanding this report, the State of Virginia still continues to claim 
the lands in question, to the great injury of your petitioner and others: That 
your petitioner, on behalf of himself and the other proprietors of the said 
tract of land, applied to the said State of New Jersey, of which some of them 
are citizens, for its protection : That the legislature of the said State there- 
upon nominated and appointed your petitioner the lawful agent of the said 
State, for the express purpose of preparing and presenting to Congress a 
memorial or petition on the part and behalf of the said State, representing 
the matter of the complaint aforesaid, to pray for a hearing, and to prosecute 
the said hearing to issue, in the mode pointed out by the Articles of Con- 
federation: That the said legislature ordered that a commission should be 
issued by the executive authority of the said State, to your petitioner, for 
the purposes aforesaid: That a commission was accordingly issued to your 
petitioner by the executive authority of the said State, a copy whereof 
accompanies this petition. . . . Wherefore your petitioner, as lawful agent 
of the said State of New Jersey, prays for a hearing in the premises, agree- 



244 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

ably to the 9th Article of Confederation and Perpetual Union between the 
United States of America.^ 

A motion to commit the petition and also a motion to consider and prepare 
an answer to it were lost, after which the Congress accepted the deed of cession 
from Virginia, as it had previously, in 1781, accepted a cession of the claims 
that New York had to the territory northwest of the Ohio. It was therefore 
unnecessary for the Congress to take further action on this petition in the form 
in which it was presented, as the claim of Messrs. Morgan and his principals 
was thereafter against the United States, not Virginia. 

Doubtless the court of appeals in cases of capture inclined the hearts and 
the understanding of the good people of the Confederation to the establishment 
of a judiciary which could pass upon questions in which the States had assumed 
jurisdiction, and thus create uniformity where diversity would otherwise have 
existed and prejudice the Confederation as such in its relations with foreign 
nations. But prize cases had been for centuries submitted to prize courts, 
tribunals or commissions. The novelty of the procedure was to establish 
one court of appeal from thirteen States, a great incentive not only to the 
establishment of a Supreme Court but also to the establishment of an interna- 
tional court of prize. Controversies between States claiming to be sovereign, 
free and independent, and in their instrument of confederation stating and 
having their sovereignty, freedom and independence recognized, had not 
hitherto been submitted as a matter of course to courts, tribunals, and com- 
missions. The statesmen of the American Revolution had put new wine into 
old bottles. They had hit upon a procedure as wise as it was novel in devising 
a method of settling international disputes without a resort to force, between 
the breakdown of diplomacy and the outbreak of war ; and in the short space 
of ten years they had completed the long road between self-redress and arbi- 
tration to judicial settlement by the establishment of the permanent interna-' 
tional judiciary known as the Supreme Court of the United States. 

1131 U. S., Appendix, p. Ix. 



XII 

CREATION OF THE SUPREME COURT 

The Americans form but one people in relation to their Federal government; but in 
the bosom of this people divers political bodies have been allowed to subsist, which are 
dependent on the national government in a few points, and independent in all the rest, — 
which have all a distinct origin, maxims peculiar to themselves, and special means of 
carrying on their affairs. To intrust the execution of the laws of the Union to tribunals 
instituted by these political bodies, would be to allow foreign judges to preside over the 
nation. Nay, more; not only is each State foreign to the Union at large, but it is a 
perpetual adversary, since whatever authority the Union loses turns to the advantage of 
the States. Thus, to enforce the laws of the Union by means of the State tribunals would 
be to allow not only foreign, but partial, judges to preside over the nation. 

But the number, still more than the mere character, of the State tribunals, made them 
unfit for the service of the nation. When the Federal Constitution was formed, there 
were already thirteen courts of justice in the United States, which decided causes without 
appeal. That number is now increased to twenty-four [forty-eight]. To suppose that a 
state can subsist, when its fundamental laws are subjected to four-and-twenty different 
interpretations at the same time, is to advance a proposition alike contrary to reason and 
to experience. {Alexis de Tocqueville, De la Democratic en Amerique, 2 vols., 1835. 
Translation of Francis Bowen, Vol. I, 1862, pp. 177-178.) 

Section 1. The judicial Power of the United States, shall be vested in one supreme 
Court, and in such inferior Courts as the Congress may from time to time ordain and 
establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices 
during good Behaviour, and shall, at stated Times, receive for their Services, a Compen- 
sation, which shall not be diminished during their Continuance in Office. 

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising 
under this Constitution, the Laws of the United States, and Treaties made, or which shall 
be made, under their Authority ; — to all Cases affecting Ambassadors, other public Min- 
isters and Consuls ; — to all Cases of admiralty and maritime Jurisdiction ; — to Contro- 
versies to which the United States shall be a Party ; — to Controversies between two or 
more States; — between a State and Citizens of another State; — between Citizens of dif- 
ferent States, — between Citizens of the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and foreign States, Citizens or 
Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in 
which a State shall be Party, the supreme Court shall have original Jurisdiction. In all 
the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, 
both as to Law and Fact, with such Exceptions, and under such Regulations as the 
Congress shall make. . . . (Constitution of the United States, Article III.) 

This Constitution defines the extent of the powers of the general government. If the 
general legislature should at any time overleap their limits, the judicial department is a 
constitutional check. If the United States go beyond their powers, if they make a law 
yvhich the Constitution does not authorize, it is void: and the judicial power, the national 
judges, who, to secure their impartiality, are to be made independent, will declare it to 
be void. On the other hand, if the states go beyond their limits, if they make a law 
which is a usurpation upon the general government, the law is void ; and upright, inde- 
pendent judges will declare it to be so. Still, however, if the United States and the 
individual states will quarrel, if they want to fight, they may do it, and no frame of 
government can possibly prevent it. It is sufficient for this Constitution, that, so far 
from laying them under a necessity of contending, it provides every reasonable check 
against it. (Oliver Ellsiiforth in the Connecticut Convention, January 7, 1788, Jonathan 
Elliot, The Debates in the Several State Conventions on the Adoption of the Federal 
Constitution, Vol. II, 1836; second edition, Vol. II, 1891, p. 196.) 

245 



246 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

That a federal system again can flourish only among communities imbued with a legal 
spirit and trained to reverence the law is as certain as can be any conclusion of political 
speculation. Federalism substitutes litigation for legislation, and none but a law-fearing 
people will be inclined to regard the decision of a suit as equivalent to the enactment of 
a law. The main reason why the United States has carried out the federal system with 
unequalled success is that the people of the Union are more thoroughly imbued with legal 
ideas than any other existing nation. Constitutional questions arising out of either the 
constitutions of the separate States or the articles of the federal Constitution are of daily 
occurrence and constantly occupy the Courts. Hence the citizens become a people of con- 
stitutionalists, and matters which excite the strongest popular feeling, as, for instance, the 
right of Chinese to settle in the country, are determined by the judicial Bench, and the 
decision of the Bench is acquiesced in by the people. This acquiescence or submission 
is due to the Americans inheriting the legal notions of the common law, i. e. of the " most 
legal system of law" (if the expression may be allowed) in the world. Tocqueville long 
ago remarked that the Swiss fell far short of the Americans in reverence for law and 
justice. The events of the last sixty years suggest that he perhaps underrated Swiss 
submission to law. But the law to which Switzerland is accustomed recognises wide dis- 
cretionary power on the part of the executive, and has never fully severed the functions 
of the judge from those of the government. (Albert Venn Dicey, Introduction to the Study 
of the Law of the Constitution, 1885, 8th edition, 1915, pp. 175-176.) 

We live under a peculiar Government, due to its dual character and limited power. 
We have to determine in this country not only what we ought to do, but what we can 
do, because we have a Government limited both as to which sovereignty shall exercise 
the power and limited also as to what matters can be dealt with at all. The one important 
original idea contained in the Constitution of the United States is the supremacy that is 
given to the judiciary. The thing that makes our Constitution unique from every one 
in the world is the fact that the Supreme Court of the United States is given power to 
say if the other branches of the Government have exceeded their power ; has the right 
to declare null and void an act of the Legislature of the National Government; has the 
right to have disregarded the action of the Executive when it is beyond his power ; and 
has the further right to say when the States have exceeded their sovereign powers. That 
is the greatest power ever given to a tribunal, and it is, as I have said, the one great 
characteristic of the American Constitution, and to it we owe more of the stability and 
grandeur of this country than to any other provision in that instrument. 

Those who have read the history of America know that the real law of America is what 
finally exists after the statutes have been construed and passed upon by the courts of 
the land, that what passes Congress does not necessarily become the law of the land. 
Through the decisions of the Supreme Court the Constitution, open to many constructions, 
was so interpreted as to create a nation with power over matters of national importance 
and at the same time to preserve the sovereign States and their sovereignty over those 
matters peculiarly pertaining to the respective States and not to the nation at large. 
There have been times when the decisions of this court in the performance of its 
great functions have aroused great excitement and at times great indignation ; but with 
the exception of the Dred Scott case [19 Howard, 393, decided in 1856] nearly every 
decision of that court undertaking to lay down the limits of national and State power 
has met with the final approval of the American people; and today it may not be inappro- 
priate, when it has become the fashion of some of those in high places to criticise the 
judiciary, to call attention to these facts. Certainly, no man from my section of the country 
should ever care to utter a condemnation of the judiciary, for when passion ran riot, when 
men had lost their judgment, when the results of four years of bitter war produced legis- 
lation aimed not at justice, but frequently at punishment, it was the Supreme Court that 
stood between the citizen and his liberties and the passion of the hour. And I trust the 
day will never come when the American people will not be willing to submit respectfully 
and gladly to the decrees of that august tribunal. Temporarily they may seem to thwart 
the will of the people, but in their final analysis they will make, as they have made, 
for orderly government, for a government of laws and not of men, and we may be sure 
that the Supreme Court in the pure atmosphere of judicial inquiry that has always sur- 
rounded it will arrive at a better interpretation of the powers of both State and National 
Governments than can be possibly hoped for in a forum like this, where popular prejudice 
and the passions of the hour affect all of us, whether we will or no. {Speech of the 
Honorable Swagar Sherley, of Kentucky, in the House of Representatives, January 10, 
1908, the Congressional Record, Sixtieth Congress, First Session, Vol. XLII, 1908, 
p. 589.) 



CHAPTER XII 

CREATION OF THE SUPREME COURT 

When the convention assembled in Philadelphia in the month of May, 
1787, to eliminate the weaknesses of the Confederation and to correct its 
faults, it was evident that an agency of a judicial nature would be created, 
invested with the right and the duty to pass upon questions of an interna- 
tional nature, in order that the department of the government responsible 
for foreign affairs should not be embarrassed by what might be called a 
luxury of judicial decision, because the holdings of thirteen courts of the 
States on one and the same international question whereof they might take 
jurisdiction would embarrass the government, whatever its form might be, 
and prevent foreign nations from entering into relations with this govern- 
ment when the relations might be interpreted by one of the contracting 
parties in some thirteen different ways. It was also evident that this agency Necessity for 
of a judicial nature, for like reasons, would be entrusted with the interpre- judic^r*" 
tation of the laws of the Union, because the right assumed and exercised 
by one State to interpret the meaning of a federal law meant the possibility 
of thirteen different interpretations, since if one State had the right to 
interpret such a law, all the States would possess this right; for, whatever 
form the Union might take, they would at least insist upon their sovereignty 
and equality in their relations one with another. The necessity of some kind 
of judicial agency of a confederate character had been recognized and had 
been partially met in the 9th of the Articles of Confederation, vesting the 
United States in Congress assembled with the right to appoint courts for 
the trial of piracies and felonies committed upon the high seas; for the 
trial and disposition of cases of capture on land and sea, and for the trial 
and disposition of disputes between the sovereign, free and equal States 
forming the Confederation. 

The lack of an adequate agency of a judicial nature was one of the 
admitted weaknesses and faults of the perpetual Union created by the 
Articles of Confederation. Indeed a very keen observer and one whose 
Opinion is law in this matter declared that the want of an adequate judicial 
power was its greatest defect. Thus, Alexander Hamilton felt himself justi- 
fied in saying in The Federalist: 

A circumstance, which crowns the defects of the confederation, remains 
yet to be mentioned — the want of a judiciary power. Laws are a dead 
letter, without courts to expound and define their true meaning and opera- 

247 



248 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

tion. The treaties of the United States, to have any force at all, must be 
considered as part of the law of the land. Their true import, as far as 
respects individuals, must, like all other laws, be ascertained by judicial 
determinations. To produce uniformity in these determinations, they ought 
to be submitted in the last resort, to one SUPREME TRIBUNAL. And this 
tribunal ought to be instituted under the same authority which forms the 
treaties themselves. These ingredients are both indispensable. If there is 
in each state a court of final jurisdiction, there may be as many different 
final determinations on the same point, as there are courts. There are 
endless diversities in the opinions of men. We often see not only different 
courts, but the judges of the same court, differing from each other. To 
avoid the confusion which would unavoidably result from the contradictory 
decisions of a number of independent judicatories, all nations have found 
it necessary to establish one tribunal paramount to the rest, possessing a 
general superintendance, and authorized to settle and declare in the last 
resort an uniform rule of civil justice. 

This is the more necessary where the frame of the government is so 
compounded, that the laws of the whole are in danger of being contra- 
vened by the laws of the parts. In this case, if the particular tribunals 
are invested with a right of ultimate decision, besides the contradictions to 
be expected from difference of opinion, there will be much to fear from 
the bias of local views and prejudices, and from the interference of local 
regulations. As often as such an interference should happen, there would 
be reason to apprehend, that the provisions of the particular laws 
might be preferred to those of the general laws, from the deference with 
which men in office naturally look up to that authority to which they owe 
their official existence. The treaties of the United States, under the present 
constitution, are liable to the infractions of thirteen different legislatures, 
and as many different courts of final jurisdiction, acting under the authority 
of those legislatures. The faith, the reputation, the peace of the whole 
union, are thus continually at the mercy of the prejudices, the passions, 
and the interests of every member of which these are composed. Is it 
possible that foreign nations can either respect or confide in such a gov- 
ernment? Is it possible that the people of America will longer consent to 
trust their honour, their happiness, their safety, on so precarious a 
foundation ? ^ 

The members of the Confederation were thus faced with the problem of 
devising an agent of a judicial nature which, while adequate for the pur- 
poses of the Union in its international aspect, would meet the approval of 
the thirteen States, holding themselves to be sovereign, free and independent. 
The problem was complicated by the existence of this sovereignty whereof 
sovere^nty each State considered itself to be possessed, as, in the words of Hamilton, 

* The Federalist, 1802, Vol. I, pp. 145-6. Paper xxii. 

In a later paper of The Federalist the principle involved in uniform determinations is 
thus expressed : 

If there are such things as political axioms, the propriety of the judicial power of a 
government being co-extensive with its legislative, may be ranked among the number. The 
mere necessity of uniformity in the interpretation of the national laws decides the question. 
Thirteen independent courts of final jurisdiction over the same cause arising upon the 
same laws, is a hydra in government, from which nothing but contradiction and confusion 
can proceed. (Vol. II, p. 224, Paper Ixxx.) 



CREATION OF THE SUPREME COURT 249 

again expressed in The Federalist, " It is inherent in the nature of sov- 
ereignty, not to be amenable to the suit of an individual without its consent." 
In this passage he was doubtless making a concession against his personal 
convictions, and lest he might seem to be renouncing in The Federalist views 
which he had expressed on other public occasions, he hastened to add : 

This is the general sense, and the general practice of mankind; and the 
exemption, as one of the attributes of sovereignty, is now enjoyed by the 
government of every state in the Union. Unless, therefore, there is a sur- 
render of this immunity in the plan of the convention it will remain with 
the states. . . .^ 

The men who met in conference in Philadelphia during the summer 
months of 1787 appreciated this crowning weakness of the Confederation, 
and their wisdom and ingenuity met and overcame the difficulties involved 
in the creation of a Supreme Court of a Union composed of States retaining 
the powers which they did not expressly grant to the Government of the 
new Union, or whose exercise would not be incompatible with the powers 
vested in the Union, by necessary implication, or of which they had not 
themselves consented to renounce the exercise. The framers of the Con- 
stitution followed the example of Solon, the renowned law-giver of antiquity, 
who, as stated by one of the members of the Convention in the course of 
debate, " gave the Athenians not the best Govt, he could devise; -but the 
best they wd. receive." ^ 

There appears to have been not merely substantial but general agreement 
that there should be an adequate judicial agency of the States, and there 
seems also to have been no opposition to its creation. There was much 
debate and difference of opinion as to whether the judiciary should have 
original or whether it should only have appellate jurisdiction, whether it 
should consist of one supreme court to which appeals should be made from 
the State judiciaries, or whether courts inferior to the Supreme Court 
should be established and vested with jurisdiction of matters of an interest 
to the States as a whole. There was also much difference of opinion as to 
the appointment of the members of the judiciary, some advocating their 
appointment by the legislature, others by the executive; still others, the 
executive in cooperation therewith. When, however, it was resolved to con- 
stitute a court for the existing States and such others as might later join or 
be added to the Union, the problem was solved in principle, and all other 
questions, however important in themselves, became matters of detail. 

As has been seen, there were two great plans laid before the Convention : 

* Ibid., p. 238. Paper Ixxxi. 

' Documentary History of the Constitution, Vol. Ill, p. 68. Mr. Butler, session of June 
5, 1787. 



of opinion 



250 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

one, the Virginian plan, which the small States regarded as conceived in 
the interest of the large States; and the other, known as the New Jersey- 
plan, expressly conceived in the interest of the smaller States. In the matter 
of the judiciary there was likewise a difference between the Virginian and 
the New Jersey plan, but both plans advocated the creation of a judiciary. 
The Virginian The Joumal of the Convention states, in its entry of May 29, 1787, that 

" Mr. Randolph, one of the deputies of Virginia, laid before the house, for 
their consideration, sundry propositions, in writing, concerning the Ameri- 
can confederation, and the establishment of a national government," ^ and 
it was ordered that, on the morrow, " the propositions this day laid before 
the house, for their consideration, by Mr. Randolph," be referred to the 
said Committee of the whole House to consider the state of the American 
Union.^ James Madison's Notes, the chief source of our knowledge of the 
proceedings of the Convention, give a summary of these resolutions, which 
must be regarded as their most authentic text, as unfortunately the original 
text which Mr. Randolph laid before the Convention has not been preserved 
other than in Mr. Madison's handwriting. According to this draft it was 
to be resolved " that the articles of Confederation ought to be so corrected 
& enlarged as to accomplish the objects proposed by their institution; 
namely, ' common defence, security of liberty and general Welfare.'"^ To 
effect these objects, a national legislature, consisting of two branches, was 
to be formed, a national executive to be instituted, and a national judiciary 
to be established. 

It is to be observed, in this connection, that the very first draft of the 
new instrument of government provided for the threefold division into a 
legislative, executive and judicial department thereof, a principle borrowed, 
it would appear, from Montesquieu, and regarded as a matter of faith by 
Americans, then as now. The article on the judiciary, as given by Madison, 
reads : 

9. Res<i. that a National Judiciary be established to consist of one or 
more supreme tribunals, and of inferior tribunals to be chosen by the 
National Legislature, to hold their offices during good behaviour; and to 
receive punctually at stated times fixed compensation for their services, in 
which no increase or diminution shall be made so as to affect the persons 
actually in office at the time of such increase or diminution, that the juris- 
diction of the inferior tribunals shall be to hear & determine in the first 
instance, and of the supreme tribunal to hear and determine in the dernier 
resort, all piracies & felonies on the high seas, captures from an enemy; 
cases in which foreigners or citizens of other States applying to such juris- 
dictions may be interested, or which respect the collection of the National 

^Journal, Acts and Proceedings of the Convention, 1787, (1819), p. 66. 

"Ibid., pp 70-1. 

^Documentary History of the Constitution, Vol. Ill, p. 17. 



CREATION OF THE SUPREME COURT 251 

revenue; impeachments of any National ofidcers, and questions which may 
involve the national peace and harmony.^ 

On the same day the Journal contains the following entry : 

Mr. Charles Pinckney, one of the deputies of South Carolina, laid 
before the house for their consideration, the draught of a federal govern- 
ment to be agreed upon between the free and independent states of 
America.^ 

Unfortunately, the text of Mr. Pinckney's draft is not preserved in the 
Journal of the Convention in original or summary form. It was presented 
after Mr. Randolph's propositions, themselves preceded by a lengthy address 
of their proposer. It was doubtless late in the day, so that Mr. Pinckney 
did not have time to accompany them with an address, although he is 
reported by Robert Yates, in his notes of that day, as saying that " he had 
reduced his ideas of a new government to a system, which he read, and con- 
fessed it was grounded on the same principle as of the above resolutions." ^ 
In any event, the text of Mr. Pinckney's plan did not seem to impress the 
members present, as it was apparently not deemed of sufficient importance, 
then or later, to be abstracted by Mr. Madison. It is not referred to in the 
accounts of Mr. McHenry or Mr. Patterson, both of whom were present 
and made careful summaries of Mr. Randolph's proposals. It was not 
adopted or considered in the Conference, other than to be referred, appar- 
ently as a compliment, to the Committee of Detail along with Mr. Ran- 
dolph's resolutions, in the form in which they had been amended, and the 
New Jersey resolutions, presented by Mr. Patterson for such consideration 
as the members of the Committee might care to give to them. 

As in the case of Mr. Randolph's original propositions, it was ordered 
" that the said draught be referred to the committee of the whole house 
appointed to consider of the state of the American union." * On the fol- 
lowing day, Mr. Randolph's resolution in favor of a national government, 
consisting of a legislative, judicial and executive department, was taken up, 
on which there is the following record in the Journal : 

Resolved, That a national government ought to be established, consisting 
of a supreme legislative, judiciary, and executive.^ 

On June 4th the Convention took up the discussion of the ninth article 
of Mr. Randolph's propositions, which, like the ninth article of the Con- 
federation, dealt with a judiciary, and on this point the Journal reads: 

' Ibid., p. 19. 

* Journal of the Convention, p.. 71. 

' Robert Yates, Secret Proceedings and Debates of the Convention, 1821, p. 97. 

* Journal of the Convention, p. 81. 
' Ibid., p. 82. 



252 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

When, on motion to agree to the first clause, namely, 
" Resolved, That a national judiciary be established," 

It passed in the affirmative. 

It was then moved and seconded to add these words to the first clause 
of the ninth resolution, namely, 

" To consist of one supreme tribunal, and of one or more inferior tri- 
bunals." 

And on the question to agree to the same. 

It passed in the affirmative.^ 

On the 5th of June the Committee of the Whole further considered Mr. 
Randolph's ninth resolution, and in the matter of inferior tribunals struck 
out the words " one or more." ^ In the same connection, the phrase " the 
national legislature " was stricken, leaving the question of selecting the 
judges to be decided later; so that the ninth resolution, as then approved by 
the Committee, read: 

Resolved, That a national judiciary be established to consist of one 
supreme tribunal, and of one or more inferior tribunals, to be appointed 
by ; to hold their offices during good behaviour ; and to 

receive punctually, at stated times, a fixed compensation for their services, 
in which no increase or diminution shall be made, so as to affect the per- 
sons actually in office, at the time of such increase or diminution. 

Further consideration of the resolution was postponed. 

Later in the day the Convention returned to the ninth article, and on 
motion of John Rutledge, later Chief Justice of the United States, seconded 
by Roger Sherman of Connecticut, who has the unique distinction of having 
signed the Declaration of Independence, the Articles of Confederation and 
the Constitution of the United States, that portion of Mr. Randolph's reso- 
lution relating to inferior tribunals was rejected and the following additional 
clause was added to the resolution: 

That the national legislature be empowered to appoint inferior tribunals.^ 

The proposition to limit the judicial power of the United States to one 
supreme tribunal, without inferior courts as proposed by Mr. Rutledge, and 
accepted for the time being by the Convention, was a matter of great impor- 
tance and was justly considered as such. James Madison, a future presi- 
dent, and James Wilson, a future justice of the Supreme Court, took issue, 
and with the support of John Dickinson and Rufus King eventually car- 
ried the point against Messrs. Rutledge and Sherman. Mr. Madison's 

^Journal of the Convention, p. 98. 
=■ Ibid., p. 99. 
' Ibid., p. 102. 



CREATION OF THE SUPREME COURT 253 

Notes fortunately give, although very briefly, the views of the different 
members. Thus, John Rutledge argued: 

That the State Tribunals might and ought to be left in all cases to 
decide in the first instance the right of appeal to the supreme national tri- 
bunal being sufficient to secure the national rights & uniformity of Judgm*^. 
that it was making an unnecessary encroachment on the jurisdiction of the 
States, and creating unnecessary obstacles to their adoption of the new 
system.^ 

Upon this, Mr. Madison, to quote his Notes again, 

observed that unless inferior tribunals were dispersed throughout the 
Republic with final jurisdiction in many cases, appeals would be multiplied 
to a most oppressive degree ; that besides, an appeal would not in many 
cases be a remedy. What was to be done after improper Verdicts in State 
tribunals obtained under the biased directions of a dependent Judge, or the 
local prejudices of an undirected jury? To remand the cause for a new 
trial would answer no purpose. To order a new trial at the supreme bar 
would oblige the parties to bring up their witnesses, tho' ever so distant 
from the seat of the Court. An effective Judiciary establishment com- 
mensurate to the legislative authority, was essential. A Government with- 
out a proper Executive & Judiciary would be the mere trunk of a body 
without arms or legs to act or move.^ 

The difficulty was real and serious, yet capable of solution, for the 
power might be granted, leaving it to the future to determine whether it 
should be exercised or not. This solution appears to have been suggested by 
Mr. Dickinson, who is represented by Mr. Madison as contending " strongly 
that if there was to be a National Legislature, there ought to be a national 
Judiciary, and that the former ought to have ' authority to institute the 
latter." ^ 

Upon the passing of Mr. Rutledge's motion to strike out " inferior tri- 
bunals," Messrs. Wilson and Madison " then moved, in pursuance of the 
idea expressed above by Mr. Dickinson," 

to add to Resol : 9. the words following " that the National Legislature be 
empowered to institute inferior tribunals." They observed that there was 
a distinction between establishing such tribunals absolutely, and giving a 
discretion to the Legislature to establish or not establish them. They 
repeated the necessity of some such provision.* 

This motion was carried, which did not direct but, what would of necessity 
amount to the same thing in the course of time, empowered the legislature 
to institute inferior tribunals. 

* Documentary History, Vol. Ill, p. 67. 
' Ibid. 

'Ibid., p. 68. 
*Ibid. 



254 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

On June 12th the matter of the judiciary was again taken up, and on 
the day following Mr. Randolph's ninth resolution was approved in the form 
which it had assumed as the result of discussion and debate in the Com- 
mittee of the Whole/ On the first of these days the resolution fared very 
badly. The proceedings on June 12th were negatived; not merely were the 
leaves plucked from the branches, but the branches themselves were torn 
from the trunk, reminding one very much of Dr. Franklin's famous anec- 
dote anent " John Thompson, Hatter, makes and sells hats for ready 
money," which simple sign, when revised, had lost the statement that John 
Thompson sold hats and made hats, and left the sign with but a picture of 
a hat to indicate what manner of man he was and what calling John 
Thompson followed.^ Thus, to quote Madison's Notes, which are usually 
fuller than on this occasion: 

It was moved & 2^^^. to alter Resol : 9. so as to read " that the jurisdiction 
of the supreme tribunal shall be to hear & determine in the dernier resort, all 
piracies, felonies, &c " 

It was moved & 2'^^'^. to strike out " all piracies & felonies on the high 
seas," which was agreed to. 

It was moved & agreed to strike out " all captures from an enemy." 

It was moved and agreed to strike out " other States " and insert " two 
distinct States of the Union." 

It was moved & agreed to postpone the consideration of Resolution 9. 
relating to the Judiciary : ^ 

After this, it is no wonder that, to quote the concluding line of Mr. Madison's 
entry for the day, " The Com^ then rose & the House adjourned." 

This does not mean, however, that there was opposition to the court or 
to its jurisdiction, but that the Convention was pursuing the course of 
international conferences and of large bodies, in which broad principles 
are proposed and debated to advantage and matters of detail are referred 
to a smaller body for consideration and report. The first entry in Mr. 
Madison's Notes for the next day, June 13th, shows that the leaders of the 
Convention had come to this conclusion, for, the consideration of the ninth 
resolution being resumed, " the latter parts of the clause relating to the juris- 
diction of the Nat^ tribunals was struck out nem. con in order to leave full 
room for their organization." * We do not need to speculate as to the reason 
for this motion on behalf of its sponsors,' as it is specifically stated in Robert 
Yates' notes of the 13th, which on this point are more elaborate than usual 
and more satisfactory than Mr. Madison's. Thus, according to Mr. Yates: 

' Documentary History, Vol. Ill, p. 122. 

' A. H. Smyth, The Writings of Benjamin Franklin, Vol. I. pp. 38-9. 

'Documentary History, Vol. Ill, p. 117. 

*Ibid. 



CREATION OF THE SUPREME COURT 255 

Gov. Randolph observed the difficulty in establishing the powers of the 
judiciary — the object however at present is to establish this principle, to 
wit, the security of foreigners where treaties are in their favor, and to pre- 
serve the harmony of states and that of the citizens thereof. This being 
once established, it will be the business of a sub-committee to detail it ; and 
therefore moved to obliterate such parts of the resolve so as only to establish 
the principle, to wit, that the jurisdiction of the national judiciary shall 
extend to all cases of national revenue, impeachment of national officers, and 
questions which involve the national peace or harmony. Agreed to unani- 
mously.^ 

The indefatigable Mr. Pinckney and the experienced Mr. Sherman thereupon 
moved that the judges of this supreme tribunal should be appointed by the 
national legislature. Mr. Madison, as recorded in his Notes, 

objected to an app*. by the whole Legislature. Many of them were incom- 
petent Judges of the requisite qualifications. They were too much infiu- 
ended by their partiahties. The candidate who was present, who had dis- 
played a talent for business in the legislative field, who had perhaps assisted 
ignorant members in business of their own, or of their Constituents, or 
used other winning means, would without any of the essential qualifications 
for an expositor of the laws prevail over a competitor not having these 
recommendations, but possessed of every necessary accomplishment. He 
proposed that the appointment should be made by the Senate, which as a 
less numerous & more select body, would be more competent judges, and 
which was sufficiently numerous to justify such a confidence in them.* 

Messrs. Pinckney and Sherman were convinced by this statement, as was 
also the Convention, which approved for the moment the appointment by 
the Senate. At this session, on the 13th of June, the Committee of the Whole 
reported on Mr. Randolph's propositions as approved by it, of which the 
portions concerning the matter in hand are as follows: 

11. ResoH that a Nat' Judiciary be established, to consist of one supreme 
tribunal, the Judges of which to be appointed by the 2^. branch of the Nat'. 
Legislature, to hold their offices during good behaviour, & to receive punctu- 
ally at stated times a fixed compensation for their services, in which no 
increase or diminution shall be made, so as to affect the persons actually 
in office at the time of such increase or diminution. 

12. Resol*^. that the Nat'. Legislature be empowered to appoint inferior 
Tribunals. 

Res^. that the jurisdiction of the Nat'. Judiciary shall extend to all cases 
which respect the collection of the Nat', revenue, impeachments of any 
Nat'. Officers, and questions which involve the national peace & harmony.' 

So matters stood v^hen the smaller States, which had remained in the 
background and contented themselves with amending the propositions of the 

^Secret Proceedings and Debates, pp. 119, 120. 
'Documentary History, Vol. Ill, p. 118. 
'Ibid., p. 122. 



256 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

larger States, began not only to gather confidence and to play a larger part 
in the proceedings, but to present a plan, conceived in their interests, as they 
believed the Virginian plan to be conceived in the interests of the larger 
States. The Virginian plan, as originally submitted and amended in the 
Committee of the Whole, did not please the delegates of the smaller States, 
of which Mr. William Patterson, later a Senator from New Jersey and a 
Justice of the Supreme Court under the Constitution, may be considered the 
mouthpiece, and who, after conference with friends who shared his views, 
and in their behalf, presented on the 15th day of June what is generally 
called the New Jersey plan. This plan admitted the defects of the Con- 
New Jersey federation and recognized that the Articles thereof could and, as expressed 
in the first proposition of the New Jersey plan, " ought to be so revised, cor- 
rected & enlarged, , as to render the federal Constitution adequate to the 
exigencies of Government, & the preservation of the Union." ^ The Con- 
gress was to be authorized " to pass Acts for the regulation of trade & com- 
merce as well with foreign nations as with each other: provided that all 
punishments, fines, forfeitures & penalties to be incurred for contravening 
such acts rules and regulations shall be adjudged by the Common law 
Judiciarys of the State in which any offence contrary to the true intent & 
meaning of such Acts rules & regulations shall have been committed or per- 
petrated, with liberty of commencing in the first instance all suits & prosecu- 
tions for that purpose in the superior Common law Judiciary in such State, 
subject nevertheless, for the correction of all errors, both in law & fact in 
rendering judgment, to an appeal to the Judiciary of the U. States." ^ 

According to this plan, the Government of the Union was to' avail itself 
of the courts of the States composing it, not to create agencies of its own 
in the shape of inferior courts, from which an appeal would naturally lie to 
the supreme federal tribunal. This supreme court, called in the plan 
" tribunal," its nature, the extent of its jurisdiction and the qualifications for 
its judges are defined in the 5th article, which reads : 

Res"^. that a federal Judiciary be established to consist of a supreme 
Tribunal the Judges of which to be appointed by the Executive, & to hold 
their offices during good behaviour, to receive punctually at stated times a. 
fixed compensation for their services in which no increase or diminution 
shall be made, so as to affect the persons actually in office at the time of 
such increase or diminution ; that the Judiciary so established shall have 
authority to hear & determine in the first instance on all impeachments of 
federal officers, & by way of appeal in the dernier resort in all cases touch- 
ing the rights of Ambassadors, in all cases of captures from an enemy, 
in all cases of piracies & felonies on the high seas, in all cases in which 

* Documentary History, Vol. Ill, p. 125. * 

'Ibid., pp. 125-6, 



CREATION OF THE SUPREME COURT 257 

foreigners may be interested, in the construction of any treaty or treaties, 
or which may arise on any of the Acts for regulation of trade, or the 
collection of the federal Revenue; that none of the Judiciary shall during 
the time they remain in Office be capable of receiving or holding any other 
office or appointment during their time of service, or for there- 

after.i 

But this was not all. The sixth article contained a very fruitful sugges- 
tion, which was destined to replace the proposal of a negative on the laws of 
the State or on the laws of Congress, either by the National Legislature or 
a Council of Revision, and, acting upon individuals, makes a resort to force 
against the States, contained in the last clause of the Article, unnecessary as 
it was always inexpedient, although originally espoused by such a man as 
Mr. Madison. Thus: 

6. Res'^. that all Acts of the U. States in Cong®, made by virtue & in 
in pursuance of the powers hereby & by the articles of confederation vested 
in them, and all Treaties made & ratified under the authority of the U. 
States shall be the supreme law of the respective States so far forth as 
those Acts or Treaties shall relate to the said States or their Citizens, and 
that the Judiciary of the several States shall be bound thereby in their 
decisions, any thing in the respective laws of the Individual States to the 
contrary notwithstanding; and that if any State, or any body of men in any 
State shall oppose or prevent y^. carrying into execution such acts or treaties, 
the federal Executive shall be authorized to call forth ye power of the Con- 
federated States, or so much thereof as may be necessary to enforce and 
compel an obedience to such Acts, or an Observance of such Treaties.^ 

It was recognized that these propositions could not be rejected off-hand, 
even although a majority of the Convention favored the Virginian plan. 
It was therefore agreed that the propositions which Mr. Patterson had intro- 
duced as a substitute for Mr. Randolph's should be referred to a Committee 
of the Whole, and the Randolph plan was likewise recommitted " in order 
to place the two plans in due comparison." ^ 

On July 18th the Convention took up the question of the judiciary and Question 
considered the eleventh, twelfth and thirteenth resolutions of Mr. Randolph's of judges 
plan, as modified by the Committee of the Whole, in preference to Mr. Patter- 
son's^plan, which, however, had been very carefully considered in the mean- 
time. There was no dissent to the formation of a national judiciary or 
to the proposition that this judiciary should consist of one supreme tribunal, 
but the debate turned upon the appointment of the judges, an embarrassing, 
difficult and delicate matter. The views on this point were divergent, some 

' Ibid., p. 127. 
' Ibid., pp. 127-8. 
•/fctd., p. 124. 



258 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

members advocating appointment by the legislature, others by the second 
house, some by the executive and still others preferring Mr. Gorham's sug- 
gestion that the "Judges be appointed by the Execu''^ vi^ith the advice & 
consent of the 2^ branch, in the mode prescribed by the constitution of 
Mas*^" ^ Mr. G'orham stated as a fact that " this mode had been long prac- 
ticed in that country, & was found to answer perfectly well." It has since 
been practiced in the United States and has likewise been found to answer 
equally well. 

After much debate without reaching an agreement, and the rejection of 
Mr. Wilson's motion leaving the appointment of the judges to the executive 
instead of to the second branch, Mr. Gorham moved " that the Judges be 
nominated and appointed by the Executive, by & with the advice & consent 
of the 2^ branch & every such nomination shall be made at least days 

prior to such appointment." ^ " This mode," he said, according to Mr. 
Madison's Notes, " had been ratified by the experience of 140 years in Massa- 
chusetts. If the app*. should be left to either branch of the Legislature, it 
will be a mere piece of jobbing." 

The Convention tied on Mr. Gorham's motion, thereby defeating it,^ 
whereupon Mr. Madison moved that " the Judges should be nominated 
by the Executive, & such nomination should become an appointment if not 
disagreed to within days by % of the 2^ branch." On the 21st of the 

month it was considered in a slightly amended form and in its stead a motion 
was adopted that " the judges of which shall be appointed by the second 
branch of the national legislature." * An agreement on this vexed question 
was therefore very difficult. 

The clause of the eleventh resolution, that the judges " hold their office 
during good behaviour " was unanimously adopted, as was also the clause 
concerning the punctual payment of their salaries. It will be recalled that, 
as worded, this clause prevented an increase or diminution of the salaries 
of the judges during their tenure of office. After much discussion and no 
little misgiving it was decided, and wisely, by a vote of 6 to 2, to strike out 
the provision against the increase of salaries, and as thus amended this por- 
tion of the resolution passed unanimously.^ 

The framers of the Constitution had decided upon a division of power 
within the Government of the Union, and, for the protection of the judiciary 
as well as for the impartial administration of justice, they were anxious 
that the judges, when and however selected, should be independent of the 

^Documentary History, Vol. Ill, p. 363. 
' Ibid., p. 366. 

• Ibid., p. 367. 

* Journal of the Convention, p. 196. 

" Documentary History, Vol. Ill, pp. 363-S. Session of July 18. 



CREATION OF THE SUPREME COURT 259 

appointing power. Therefore, they were to hold office during good behavior 
and during their tenure of office they were to receive salaries which assuredly 
should not be decreased, if indeed they might be increased, during their 
tenure of office, even although they might depend upon the pleasure or dis- 
cretion of one or the other branch of the Government for their appointment. 
The experience of colonial days had shown them the wisdom if not the 
necessity of this action on their part; but if they had forgotten it, they had 
an object lesson before their very eyes, for in the preceding year the judges 
of Rhode Island, who had declared a law of that State to be unconstitutional 
in the case of Trevett v. Weeden, were summoned before the Assembly " to 
render their reasons for adjudging an act of the General Assembly to be un- 
constitutional and so void." ^ Although no action was taken against them 
they were not reelected by the Legislature at the expiration of their terms in 
the spring of the very year in which the Federal Convention met in Phila- 
delphia. 

The 12th resolution, empowering Congress to institute inferior tri- 
bunals, was equally fortunate, although it was objected to, Mr. Sherman 
saying that he was " willing to give the power to the Legislature but wished 
them to make use of the State Tribunals whenever it could be done with 
safety to the general interest." ^ But the views tersely expressed by George 
Mason apparently carried conviction, that " many circumstances might arise 
not now to be foreseen, which might render such a power absolutely neces- 
sary." * 

The clause in the 13th resolution, relating to the impeachment of national 
officers, was struck out, and " several criticisms," to quote Mr. Madison's 
Notes, " having been made on the definitions " of the jurisdiction of the 
national judiciary, it was, with the approval of the Convention, recast by 
Mr. Madison so as to read, " that the jurisdiction shall extend to all cases 
arising under the Nat', laws : And to such other questions as may involve the 
Nat', peace & harmony." * 

There seems to have been a tacit understanding that, although the gen- 
eral principles of the Constitution should be considered in the Committee of 

' Brinton Coxe, Judicial Power and Unconstitutional Legislation, 1893, p. 246. 

In the session of July 17th of the Federal Convention of 1787, Mr. Madison said, with 
direct reference to the case of Trevett v. IVeedcn, 

Confidence cannot be put in the State Tribunals as guardians of the National au- 
thority and interests. In all the States these are more or less depend', on the Legisla- 
tures. In Georgia they are appointed annually by the Legislature. In R. Island the 
Judges who refused to execute an unconstitutional law were displaced, and others sub- 
stituted, by the Legislature who would be willing instruments of the wicked & arbitrary 
plans of their masters. Documentary History, Vol. Ill, p. 352. Also, J. B. Scott, 
Judicial Settlement of Controversies between States, Vol. I, pp. 101-3. 

' Documentary History, Vol. Ill, p. 369. 

' Ibid. 

* Ibid. 



of DetaU 



260 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the Whole, where the discussion was more informal than in the Convention 
itself, and although the Convention should formally pass upon each clause 
of the Constitution, it would be necessary to refer the resolutions agreed 
upon to some committee which should elaborate them, devise the frame- 
work of the Constitution, and insert them in the form of articles in the 
order which they might properly assume in an instrument of that kind. 
Therefore, on July 23rd, a motion was made and unanimously agreed to that 
" the proceedings of the Convention for the establishment of a Nat'. Gov^ 
except the part relating to the Executive), be referred to a Committee to 
prepare & report a Constitution conformable thereto." ^ This motion was 
unanimously agreed to, and, recognizing from their own experience in the 
Convention that a small committee was more efifective than a large one, it 
was unanimously resolved that the committee should consist of five members. 
Committee *o ^e appointed on the morrow. Therefore, on the 24th, the five members 

to compose the committee to report a constitution were elected by ballot : 
Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. It was like- 
wise felt that the committee should have before it the projects relating to a 
constitution which had been presented by Mr. Pinckney in his own behalf and 
by Mr. Patterson on behalf of the smaller States. They were therefore 
referred to this committee, henceforth known as the Committee of De- 
tail.^ 

Inasmuch as the motion to refer the resolutions agreed upon was passed on 
the 23d, and as it was desirable that the committee should have before it 
any resolutions agreed to since that date, it was decided on the 26th to refer 
these as well to the Committee of Detail, and, in order to give its members 
an opportunity to consider the projects and to report a draft of a constitu- 
tion, the Convention adjourned to August 6th. 

In the very short period of ten days, between the 26th o^ July and the 
6th of August, the committee was able to report an instrument which bears 
very strong resemblance to the present Constitution of the United States. 
On that day the Convention met and each member was provided with a 
printed draft which, amended and improved in many ways, became the actual 
Constitution. We do not know just what took place in the Committee of 
Detail during the intervening ten days, other than that the Committee com- 
plied with the directions of the Convention to prepare and to report a draft 
" conformable to the resolutions passed by the Convention." A very careful 
and critical examination of the papers and documents which have been 
preserved in various ways, and which have come to light in the course of 
the last few years, has enabled students of the Constitution to divine, where 

^Documentary History, Vol. Ill, pp. 413-14. 
* Ibid., p. 423. 



CREATION OF THE SUPREME COURT 261 

they can not actually describe, the method of procedure.^ Among the papers 
of George Mason, a member of the Convention, there was found a paper in 
Mr. Randolph's handwriting, of which certain parts have been identified 
as the handwriting of John Rutledge. Among the papers in the possession 
of James Wilson, a member of the Committee of Detail, there were various 
documents, one of which is a draft of the Constitution in Wilson's hand- 
writing, which seems to have incorporated in it certain portions of the 
Pinckney draft and of the New Jersey plan. It has been concluded that the 
Committee of Detail, under Mr. Rutledge's chairmanship, took up the reso- 
lutions of the Convention as referred; that, after discussion and debate, and 
agreement upon a general plan, the resolutions were referred to Mr. Ran- 
dolph, the sponsor of the Virginian plan although he is not to be credited with 
its authorship; that Mr. Randolph prepared the instrument in his handwrit- 
ing, which is found to be the first draft of the Constitution, together with 
suggestions and criticisms; that this draft was laid before the Committee of 
Detail, considered by it, and modifications thereof inserted in the document in 
the handwriting of Mr. Rutledge, its chairman ; that at a later stage, James 
Wilson, with the amended Randolph draft before him and the Pinckney and 
Patterson propositions, prepared an enlarged and revised draft. This, called 
the Wilson draft, was likewise amended by the committee and the changes 
incorporated in it appear to be in the handwriting of Mr. Rutledge, its 
chairman. 

Be this as it may, the printed report of the committee was laid before 
the Convention, and a printed copy of the report was at the same time fur- 
nished to each member. 

The articles of the draft concerning the judiciary, the Supreme Court Draft 

. bJ J, f Proposals 

and mferior courts are as follows: 

VII 

Sect. 1. The Legislature of the United States shall have the power . . . 
To constitute tribunals inferior to the Supreme Court; . . . 

VIII 

The Acts of the Legislature of the United States made in pursuance of 
this Constitution, and all treaties made under the authority of the United 
States shall be the supreme law of the several States, and of their citizens 
and inhabitants ; and the judges in the several States shall be bound thereby 
in their decisions ; anything in the Constitutions or laws of the several States 
to the contrary notwithstanding. 

* See Max Farrand, The Framing of the Constitution of the United States. Chapters 
TX and X; also, J. Franklin Jameson, Studies in the History of the Federal Convention 
of 1787, in Annual Report of the American Historical Association, 1902, Vol. I, pp. 89-167. 



262 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

IX 

Sect. 1. The Senate of the United States shall have power .... to 
appoint .... Judges of the supreme Court. 

Sect. 2. In all disputes and controversies now subsisting, or that may 
hereafter subsist between two or more States, respecting jurisdiction or ter- 
ritory, the Senate shall possess the following powers. Whenever the Legis- 
lature, or the Executive authority, or lawful Agent of any State, in con- 
troversy with another, shall by memorial to the Senate, state the matter in 
question, and apply for a hearing; notice of such memorial and application 
shall be given by order of the Senate, to the Legislature or the Executive 
authority of the other State in Controversy. The Senate shall also assign a 
day for the appearance of the parties, by their agents, before the House. 
The Agents shall be directed to appoint, by joint consent, commissioners or 
judges to constitute a Court for hearing and determining the matter in 
question. But if the Agents cannot agree, the Senate shall name three per- 
sons out of each of the several States ; and from the list of such persons each 
party shall alternately strike out one, until the number shall be reduced to 
thirteen ; and from that number not less than seven nor more than nine names, 
as the Senate shall direct, shall in their presence, be drawn out by lot; and 
the persons whose names shall be so drawn, or any five of them shall be 
commissioners or Judges to hear and finally determine the controversy ; pro- 
vided a majority of the Judges, who shall hear the cause, agree in the deter- 
mination. If either party shall neglect to attend at the day assigned, without 
shewing sufficient reasons for not attending, or being present shall refuse 
to strike, the Senate shall proceed to nominate three persons out of each 
State, and the Clerk of the Senate shall strike in behalf of the party absent 
or refusing. If any of the parties shall refuse to submit to the authority of 
such Court ; or shall not appear to prosecute or defend their claim or cause, 
the Court shall nevertheless proceed to pronounce judgment. The judgment 
shall be final and conclusive. The proceedings shall be transmitted to the 
President of the Senate, and shall be lodged among the public records, for 
the security of the parties concerned. Every Commissioner shall, before he 
sit in judgment, take an oath, to be administered by one of the Judges of 
the Supreme or Superior Court of the State where the cause shall be tried, 
" well and truly to hear and determine the matter in question according to the 
best of his judgment, without favor, affection, or hope of reward." 

XI 

Sect. 1. The Judicial Power of the United States shall be vested in one 
Supreme Court, and in such inferior Courts as shall, when necessary, from 
time to time, be constituted by the Legislature of the United States. 

Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, 
shall hold their offices during good behavior. They shall, at stated times, 
receive for their services, a compensation, which shall not be diminished dur- 
ing their continuance in office. 

Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases 
arising under laws passed by the Legislature of the United States ; to all cases 
affecting Ambassadors, other Public Ministers and Consuls ; to the trial of 
impeachments of Officers of the United States ; to all cases of Admiralty and 
maritime jurisdiction; to controversies between two or more States, (except 
such as shall regard Territory or Jurisdiction) between a State and Citizens 



CREATION OF THE SUPREME COURT 263 

of another State, between Citizens of different States, and between a State 
or the Citizens thereof and foreign States, citizens or subjects. In cases of 
impeachment, cases affecting Ambassadors, other Public Ministers and Con- 
suls, and those in which a State shall be party, this jurisdiction shall be 
original. In all the other cases before mentioned, it shall be appellate, with 
such exceptions and under such regulations as the Legislature shall make. 
The Legislature may assign any part of the jurisdiction above mentioned 
(except the trial of the President of the United States) in the manner, and 
under the limitations which it shall think proper, to such Inferior Courts, 
as it shall constitute from time to time. 

XVI 

Full faith shall be given in each State to the acts of the Legislatures, and 
to the records and judicial proceedings of the Courts and Magistrates of 
every State. 

XX 

The members of the Legislatures, and the Executive and Judicial officers 
of the United States, and of the several States, shall be bound by oath to 
support this Constitution.^ 

The articles concerning the judiciary were taken up on August 27th, when 
Dr. Johnson proposed to extend the judicial power of the United States to 
cases involving law and equity. After discussion this was agreed to, and 
the phrase " both in law and equity " was inserted immediately after " the 
United States," ^ thus making the first part of the section read 

The judicial power of the United States, both in law and equity, shall 
be vested in one Supreme Court. 

At a later date, namely, on September 15th, the Convention struck out the 
phrase concerning law and equity inserted in this part of the articles, because 
it was included in Sec. 2, and therefore did not need to be repeated.* The 
matter of the tenure of judges was taken up, and it was proposed by Mr. 
Dickinson, that " after the words ' good behaviour ' the words ' provided that 
they may be removed by the Executive on the application by the Senate and 
House of Representatives ' " be inserted.* Gouverneur Morris thought that 
it was a contradiction in terms to say " that the Judges should hold their offices 
during good behavior, and yet be removable without a trial," and Mr. Rut- 
ledge called attention to what he considered to be an insuperable objection 
to the motion, in that the Supreme Court was to judge between the United 
States and particular States. The motion was therefore rejected,^ and with 

* Documentary History, Vol. Ill, pp. 449-57. 
' Ibid., p. 623. 

* Journal of the Convention, -p. 384. 

* Documentary History, Vol. Ill, pp. 623-4. Session of August 27th. 

* Ihid. 



264 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

modifications of form suggested by the Committee of Style, the article was 
adopted substantially as reported by the Committee of Detail, and in the 
Constitution as finally signed the two sections are thus merged: 

Article III. 

Section 1. The judicial Power of the United States, shall be vested in one 
supreme Court, and in such inferior Courts as the Congress may from time 
to time ordain and establish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behaviour, and shall, at stated 
Times, receive for their Services, a Compensation, which shall not be dimin- 
ished during their Continuance in Office. 

Section 3 of the 11th Article reported by the Committee of Detail dealt 
with the subject matter of the 2d Section of the present Constitution, and 
in addition with some other matters which will be referred to later. On 
August 27th, Mr. Madison and Gouvemeur Morris, as stated in Madison's 
Notes, " moved to insert after the word ' controversies ' the words ' to which 
the U — S — shall be a party,' " ^ which had the effect of investing the Su- 
preme Court with jurisdiction in cases affecting the United States, and of 
subordinating the United States to the law as interpreted by the tribunal. 
This amendment gave effect to one of several proposals which Charles Pinck- 
ney had made on August 20th, as follows : 

The Jurisdiction of the supreme Court shall be extended to all contro- 
versies between the U. S. and an individual State, or the U. S. and the 
Citizens of an individual State. ^ 

Dr. Johnson moved to amend the first clause of ihe article as reported by the 
Committee of Detail by inserting before the word " laws " in the first clause 
thereof, the expression " this Constitution and the," ^ which would have the 
effect of extending the jurisdiction of the Supreme Court to all cases both in 
law and equity arising under " this Constitution and the laws of the United 
States," etc. 

This raised a very important question, which was at any rate seen by Mr. 
Madison and called to the attention of the Convention, for, to quote his 
Notes, he " doubted whether it was not going too far to extend the jurisdic- 
tion of the Court generally to cases arising Under the Constitution, & 
whether it ought not to be limited to cases of a Judiciary Nature. The right 
of expounding the Constitution in cases not of this nature though not to be 
given to that Department." * That is to say, the court was to be a court of law 

^Documentary History, Vol. Ill, p. 626. 
' Ibid., p. 566. 
'Ibid., ■p. 626. 
* Ibid. 



CREATION OF THE SUPREME COURT 265 

and equity; it was not to be a diplomatic body passing upon political 
questions. 

There appears to have been no action taken on the question raised by 
Mr. Madison. Dr. Johnson's motion was agreed to " nem. con.," it being gen- 
erally supposed, as Mr. Madison says, that the jurisdiction was constructively 
limited to cases of a judicial nature.^ 

This was not the only amendment to the clause, and one moved by Mr. 
Rutledge gave effect to one of the purposes for which the Convention had 
been called, namely, to enable the United States to have its international 
obligations passed upon by a tribunal of the Union instead of by tribunals of 
the individual States, with the possibility of inconsistent and jarring inter- 
pretations. Immediately after the expression " United States," contained in 
this clause, Mr. Rutledge moved to insert " and treaties made or which shall 
be made under their authority." He further moved the omission of the 
phrase " passed by the Legislature," and both his amendments carried.^ 
The amendment, however, was due to Mr. Madison, upon whose motion it 
had been debated two days previously and in a different connection, as will 
presently appear.^ 

Without dwelling further upon these matters at this time, and leaving 
aside other and special phases of the Judiciary which will be discussed latei; 
it is evident that the members of the Constitutional Convention were intent 
upon a Supreme Court of the more perfect Union in the technical sense 
of the word ; that it should not pass upon all provisions of the Constitution, 
but only upon those of a judicial nature; that the Congress should have the 
power, to be exercised in its discretion, of appointing inferior tribunals from 
which an appeal should lie to the Supreme Court; that for uniformity of 
decision appeals should lie from State tribunals when national or international 
questions were concerned ; and that in any event the provisions of the Constitu- 
tion of a non-political character, the acts of Congress passed in pursuance of 
the Constitution, and treaties made or to be made by the United States, should 
be determined by the Supreme Court of the States, not finally determined 
even by the Supreme Courts of the several States. In a word, every national 
and every international act was in ultimate resort to be determined by the 
final judicial authority of the Union. 

The framers of the Constitution, however, did not content themselves with 

a narrow and technical definition of judicial power. They extended it, 

wisely as we now know, to controversies between the States, making the 

Supreme Court an international tribunal and showing the possibility of an 

international court of justice for the Society of Nations. 

' Ibid., p. 626. 

' Ibid. 

• Ibid., p. 619. Session of August 25th. 



XIII 

PROTOTYPE OF A COURT OF INTERNATIONAL 
JUSTICE 

The usual remedies between nations, war and diplomacy, being precluded by the federal 
union, it is necessary that a judicial remedy should supply their place. The Supreme Court 
of the Federation dispenses international law, and is the first great example of what is now 
one of the most prominent wants of civilized society, a real International Tribunal. (John 
Stuart Mill, Considerations on Representative Government, 1861, pp. 305-306.) 

Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal 
law, state law, and international law, as the exigencies of the particular case may de- 
mand. . . . {Chief Justice Fuller in Kansas v. Colorado, 185 United States, 125, 146-147, 
decided in 1902.) 

The importance which the framers of the Constitution attached to such a tribunal, for 
the purpose of preserving internal tranquillity, is strikingly manifested by the clause which 
gives this court jurisdiction over the sovereign States which compose this Union, when a 
controversy arises between them. Instead of reserving the right to seek redress for injus- 
tice from another State by their sovereign powers, they have bound themselves to submit 
to the decision of this court, and to abide by its judgment. And it is not out of place to 
say, here, that experience has demonstrated that this power was not unwisely surrendered 
by the States ; for in the time that has already elapsed since this Government came into 
existence, several irritating and angry controversies have taken place between adjoining 
States, in relation to their respective boundaries, and which have sometimes threatened to 
end in force and violence, but for the power vested in this court to hear them and decide 
between them. {Chief Justice Taney in Ableman v. Booth, 21 Howard, 506, 519, decided 
in 1838.) 

Those states, in their highest sovereign capacity, in the convention of the people thereof ; 
on whom, by the revolution, the prerogative of the crown, and the transcendent power of 
parliament devolved, in a plenitude unimpaired by any act, and controllable by no authority, 
adopted the constitution, by which they respectively made to the United States a grant of 
judicial power over controversies between two or more states. (Mr. Justice Baldwin in 
Rhode Island v. Massachusetts, 12 Peters, 657, 720, decided in 1838.) 

So that the practice seems to be well settled, that in suits against a state, if the state 
shall refuse or neglect to appear, upon due service of process, no coercive measures will 
be taken to compel appearance ; but the complainant, or plaintiff, will be allowed to proceed 
ex parte. (Mr. Justice Thompson in Massachusetts v. Rhode Island, 12 Peters, 755, 761, 
decided in 1838.) 

From the character of the parties, and the nature of the controversy, we cannot, without 
committing great injustice, apply to this case the rules as to time, which govern Courts of 
Equity in suits between individuals. . . . But a case like this, and one too of so many 
years standing, the parties, in the nature of things, must be incapable of acting with the 
promptness of an individual. Agents must be employed, and much time may be required 
to search for historical documents, and to arrange and collate them, for the purpose of 
presenting to the Court the true grounds of the defence. {Chief Justice Taney in Rhode 
Island V. Massachusetts, 13 Pet^ers, 23, 24, decided in 1839.) 

The case to be determined is one of peculiar character, and altogether unknown in the 
ordinary course of judicial proceedings. It is a question of boundary between two sov- 
ereign states, litigated in a Court of Justice, and we have no precedents to guide us in the 
forms and modes of proceedings, by which a controversy of this description can most 
conveniently, and with justice to the parties, be brought to a final hearing. The subject 
was however fully considered at January term, 1838. ... It was then decided, that 

266 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 267 

the rules and practice of the Court of Chancery should govern in conducting this suit 
to a final issue. . . . 

Yet, in a controversy where twro sovereign states are contesting the boundary between 
them, it will be the duty of the Court to mould the rules of Chancery practice and pleading, 
in such a manner as to bring this case to a final hearing on its real merits. It is too 
important in its character, and the interests concerned are too great, to be decided upon 
the mere technical principles of Chancery pleading. {Chief Justice Taney in Rhode Island 
V. Massachusetts, 14 Peters, zio, 256-7, decided in 1840.) 

And it would seem that when the Constitution was framed, and when this law was 
passed, it was confidently believed that a sense of justice and of mutual interest would 
insure a faithful execution of this constitutional provision by the Executive of every State, 
for every State had an equal interest in the execution of a compact absolutely essential to 
their peace and well being in their internal concerns, as well as members of the Union. 
Hence, the use of the words ordinarily employed when an undoubted obligation is required 
to be performed, " it shall be his duty." 

But if the Governor of Ohio refuses to discharge this doty, there is no power delegated 
to the General Government, either through the Judicial Department or any other depart- 
ment, to use any coercive means to compel him. (Chief Justice Taney in Kentucky v. 
Dennison, Governor of Ohio, 24 Howard, 66, 109-10, decided in i860.) 

The opinions referred to will make it clear that both States were afforded the amplest 
opportunity to be heard and that all the propositions of law and fact urged were given 
the most solicitous consideration. Indeed, it is also true that in the course of the contro- 
versy, as demonstrated by the opinions cited, controlled by great consideration for the 
character of the parties, no technical rules were permitted to frustrate the right of both 
of the States to urge the very merits of every subject deemed by them to be material. 

And, controlled by a like purpose, before coming to discharge our duty in the matter now 
before us, we have searched the record in vain for any indication that the assumed exist- 
ence of any error committed has operated to prevent the discharge by West Virginia of 
the obligations resulting from the judgment and hence has led to the proceeding to enforce 
the judgment which is now before us. (Chief Justice White in Virginia v. West Virginia, 
246 United States, 565, 590, decided in 1918.) 

That judicial power essentially involves the right to enforce the results of its exertion 
is elementary. . . . And that this applies to the exertion of such power in controversies 
between States as the result of the exercise of original jurisdiction conferred upon this 
court by the Constitution is therefore certain. The many cases in which such contro- 
versies between States have been decided in the exercise of original jurisdiction make this 
truth manifest. Nor is there room for contending to the contrary because, in all the cases 
cited, the States against which judgments were rendered, conformably to their duty under 
the Constitution, voluntarily respected and gave effect to the same. This must be unless it 
can be said that, because a doctrine has been universally recognized as being beyond dis- 
pute and has hence hitherto, in every case from the foundation of the Government, been 
accepted and applied, it has by that fact alone now become a fit subject for dispute. 
(Chief Justice White in Virginia v. West Virginia, 246 United States, 565, 591-2, decided 
in 1918.) 

The complainant, the Commonwealth of Virginia, now comes and informs the Court 
that the decree entered by the Court in this cause on the 14th of June, 1915, in favor of 
the complainant and against the defendant, for the sum of $12,393,929.50, with interest 
thereon from July 1st, 1915, until paid at the rate of five per centum per annum, together 
with one-half of the costs, has been fully satisfied and paid by the defendant in the manner 
provided in, and in accordance with the terms of the Act of the Legislature of the State 
of West Virginia approved April 1st, 1919, entitled " An Act providing for the payment of 
West Virginia's part of the public debt of the commonwealth of Virginia prior to the first 
day of January, one thousand eight hundred and sixty-one, as ascertained by the judgment 
of the Supreme Court of the United States and adjusted by the two States, and to provide 
for the issuance of bonds and the raising and appropriation of , money for the payment of 
said judgment." (Acknowledgment of Satisfaction of Decree filed in the Supreme Court 
of the United States, March i, 1920, in the case of State of Virginia v. State of West 
Virginia, 238 United States. 202. decided in 19/5.) 



CHAPTER XIII 

PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 

Questions The cffcct of Mf. Rutlcdgc's motion to have the judicial power of the 

Treaties United States extended to treaties made or to be made under their authority 

was to endow the Supreme Court with the power and the duty to pass upon 
the question of treaties and to ascertain and fix the obligation of the general 
government and of the States by judicial decision of the Supreme Court. A 
minor but not unimportant improvement of the draft of August 6th should 
be mentioned, which was made in the busy and fruitful session of August 
27th. By an inspection of the draft it will appear that, by the first section 
of Article 11, "the Judicial Power of the United States shall be vested in 
one Supreme Court;" and in section 3 thereof, "the jurisdiction of the 
Supreme Court " is very naturally and properly defined.^ This slight varia- 
tion of language, which might be supposed to affect the meaning, was not 
lost upon Mr. Madison. He suggested, with the unanimous approval of the 
Convention, that the wording should be the same in each case, and therefore 
" the Judicial Power " of the United States was substituted for " the juris- 
diction of the Supreme Court." ^ 

There was an added reason for the change which could be advanced if 
any justification be needed, in that the first section expressly, and the second 
section impliedly, spoke of inferior courts to which the judicial power of 
the United States was to extend. Therefore this expression was really 
more accurate than the former. It will also be observed from the draft of 
the Committee of Detail that, while the jurisdiction of the Supreme Court, 
or, as amended, the judicial power of the United States, is extended to con- 
troversies between two or more States, controversies regarding " territory 
or jurisdiction " are excepted from the jurisdiction of the Supreme Court. 
It was intended, however, that they should be subject to the judicial power, 
although the procedure to be followed was different. 

The reason for the exception is not difficult to find, for, in this as in 
other matters, the members of the Convention had in mind, and indeed 
under their very eyes, the Articles of Confederation, which they retained in 
spirit if not in letter whenever it seemed possible or advisable to do so. The 
ninth of these articles declared that " the United States in Congress assem- 

' Documentary History of the Constitution, Vol. Ill, p. 454. Session of August 6th. 
' Ibid., p. 627. 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 269 

bled shall also be the last resort on appeal in all disputes and differences now 
subsisting or that hereafter may arise between two or more States concern- 
ing boundary, jurisdiction, or any other cause whatever," and provided that 
they should be settled by means of temporary commissions to be appointed 
by the Congress upon the general consent of the agents of the States in con- 
troversy, or, in default of their agreement, from a list made up of three 
persons from each of the thirteen States represented in the Congress. The 
Committee of Detail had preserved this procedure, restricting it, however, 
to disputes and controversies " respecting jurisdiction or territory," and sub- 
stituting the Senate of the Constitution for the Congress of the Confedera- 
tion. In substance and in spirit the ninth article of the Confederation was 
preserved, as in the Senate the States were to be equally represented, as they 
had been under the Confederation; so that the representatives of the States 
as such were to take the necessary steps for the settlement of disputes and 
differences. The long section of the articles and of the proposed Constitu- 
tion was replaced by the very simple provision that " the judicial power 
shall extend ... to controversies between two or more States." In this 
change lies the promise of an international judiciary, for controversies 
involving questions of law and equity between two or more States of the 
American Union were to be decided by judges, not compromised by arbiters, 
just as controversies between members of the society of nations can and one 
day will be so decided involving " the principles of equity and right on which 
are based the security of States and the welfare of peoples," to quote the 
preamble to the Hague Convention for the pacific settlement of international 
disputes.^ 

As this point is so interesting and so important, and as the Supreme Court 
is the prototype of an international tribunal, the discussion of the matter in 
the Convention is set forth in full as found in Mr. Madison's Notes under 
date of August 24th: 

Sect: 2 & 3 of art: IX being taken up. 

M"". Rutlidge said this provision for deciding controversies between the 
States was necessary under the Confederation, but will be rendered unnec- 
essary by the National Judiciary now" to be established, and moved to strike 
it out. 

Doc''. Johnson 2^^*^. the Motion. 

M"". Sherman concurred : so did M*". Dayton. 

M"". Williamson was for postponing instead of striking out, in order to 
consider whether this might not be a good provision, in cases where the 
Judiciary were interested or too closely connected with the parties — 

M"". Chorum had doubts as to striking out. The Judges might be con- 
nected with the States being parties — He was inclined to think the mode 

^Statutes at Large, 36:2201. 



270 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



How Political 
Questions 



proposed in the clause would be more satisfactory than to refer such cases 
to the Judiciary — 

On the Question for postponing the 2^. and 3<*. Section, in passed in the 
negative. 

N. H. ay. Mas^^. no. Con*, no. N. J. no. Pen^. abs*. Del. no. M^. no. 
V^. no. N. C. ay. S- C no. G^o. ay. 

Mr. Wilson urged the striking out, the Judiciary being a better pro- 
vision. 

On Question for striking out 2 & 3 Sections Art : IX. 

N. H. ay. Mas : ay. O. ay. N. J- ay. P^. abs*. Del- ay. M^. ay. V*. ay. 
N. C. no. S. C. ay — Geo. no.^ 

We are indeed fortunate to have even this brief account of one of the 
silent revolutions in the thought and therefore in the practice of mankind, 
for, with the lessons of history before them and with no exact precedent 
for their action, the members of the Convention recognized that the submis- 
sion of a dispute between nations to a judicial tribunal makes of it a 
juridical question, and therefore a proper subject of judicial power, as 
pointed out by the agent of their creation in the controversy between Rhode 
Island and Massachusetts (12 Peters, 755) decided in 1838. 

It is to be observed, in the first place, that the Convention regarded some 
method as " necessary " for settling the disputes between the States. With- 
out a court some such provision as that of the Articles of Confederation 
was "necessary; " but the establishment of the court made the provision of 
the articles " unnecessary," as pointed out by Mr. Rutledge, in that there 
would be an agency ready and apt to decide the disputes without the delay 
involved in creating one for the case when it arose and which, as a tem- 
porary tribunal, would go out of being when the dispute had been settled. 
The provision of the articles was therefore unnecessary, and the gospel of 
the new dispensation was, as Mr. Wilson urged, " a better provision." 

It is further to be observed that the motion in this case was made by a 
distinguished lawyer, later to be Chief Justice of the Supreme Court of the 
United States, and that the recommendation for the judicial method came 
from Mr. Wilson, then a leader of the Pennsylvania bar and destined to be 
a Justice of the Supreme Court. It appeared to these men to go without 
argument that controversies of a legal and equitable nature between States 
could, and therefore should, be decided by a court, which for purposes of 
justice was to be the agent created by the States in which they consented to 
be sued, not an agency of government superior to the States and imposed 
upon them from above. It will also be observed that some of the delegates 
felt that the method of arbitration could still profitably be resorted to, as it 
was later to be pointed out by a distinguished French statesman at the 
Second Hague Peace Conference, that nations, while willing to submit their 
''■Documentary History of the Constitution, Vol. Ill, pp. 607-8. 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 271 

controversies of a judicial nature to an international court, might prefer to 
submit their disputes of a different nature, or in which the judicial was 
slight in comparison to the political element, to arbitration.^ 

If the matter had stopped here, only a part of the jurisdiction exercised 
by the United States in Congress assembled under the ninth of the Articles 
of Confederation would have been vested in the Supreme Court. The ninth 
article submitted to the Congress " all controversies concerning the private 
right of soil claimed under different grants of two or more States " to " be 
finally determined as near as may be in the same manner . . . for decid- 
ing disputes respecting territorial jurisdiction between different States." 
This clause, forming the third section of the ninth of the Articles of Con- 
federation, was retained in the proposed draft of the Constitution, which 
likewise formed the third section of the ninth article, with the substitution 
of the Senate, with its equal representation of the States, for the Congress, 
and is thus worded in the latter document : 

All controversies concerning lands claimed under different grants of 
two or more States, whose jurisdictions, as they respect such lands shall 
have been decided or adjusted subsequent to such grants, or any of them, 
shall, on application to the Senate, be finally determined, as near as may be, 
in the same manner as is before prescribed for deciding controversies 
between different States.^ 

Therefore, in the session of the 27th, three days after the Supreme Court 
was vested with jurisdiction of controversies between the States, Mr. 
Sherman proposed a further extension of judicial power by investing the 
court with the exercise of the power contained in the ninth of the Articles 
of Confederation, carried over to the ninth article of the proposed Consti- 
tution. As recorded by Mr. Madison, " Mr. Sherman moved to insert after 
the words ' between Citizens of different States ' the words, ' between Citi- 
zens of the same State claiming lands under grants of different States ' — 
according to the provision in the ninth art: of the Confederation — which 
was agreed to nem : con:"^ As thus modified, this section of the ninth 
article is embodied in the Constitution. 

A further and not the least interesting modification of the proposed Con- 
stitution was likewise made in the session of the 27th, in which the Supreme 
Court was vested with the jurisdiction which the Congress had possessed 

'■ " Thus it is seen that the cases for which the permanent tribunal is possible are the 
same as those in which compulsory arbitration is acceptable, being, generally speaking, 
cases of legal nature. Whereas political cases, in which the nations should be allowed 
freedom to resort to arbitration, are the very ones in which arbitrators are necessary rather 
than judges, that is, arbitrators chosen at the time the controversy arises." Discourse of 
M. Leon Bourgeois. James Brown Scott, The Reports to the Hague Conferences of i8gg 
and 1907, (1918), pp. 239^0. 

'Documentary History, Vol. iii, p. 452. Session of August 6th. 

' Ibid., p. 627. 



272 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Original and 

Appellate 

Jurisdiction 



Impeachment 



under the Confederation. A step in advance of this was taken by the Con- 
vention upon Mr. Madison's suggestion " agreed to nem. con.," that after 
the words " controversies between the States," the clause should be inserted 
"to which the U- S- shall be a party." ^ The Supreme Court was the 
appropriate court in which the United States should appear as a litigant, and 
it was natural that the right of the Government to avail itself of this tri- 
bunal should be expressly stated; although it might have been plausibly con- 
tended that the United States, as such, would be included within the clause 
extending the judicial power " to controversies between two or more 
States." The Convention either did not consider the United States as a 
State within the meaning of this clause, or deemed it preferable to separate 
the united from the individual States. Had it not done so, and if the United 
States were not included within the clause, it would have followed that the 
United States could be sued in the Supreme Court as well as appear as a 
plaintiff in a controversy with a State to which it was a party, whereas the 
United States would or would not be a party defendant under Mr. Madison's 
motion as the Supreme Court should interpret the clause when a case involv- 
ing it was presented for its consideration. In any event, it is important to 
note the difference of language used with respect to the United States and 
to the States as such in these two clauses, as the Supreme Court has held 
that, by virtue of this wording, a State may be made defendant at the 
instance of a State because of the consent by them given in the Constitu- 
tion, whereas the United States, by the clause in question, is authorized to 
make use of the Supreme Court in a controversy to which it is a party, but 
not to be made a defendant without its special consent, as the terms of the 
clause imply authorization, not consent. 

The second clause of the second section of the third article of the Con- 
stitution as finally adopted is designed to give effect to the grant of judicial 
power and to assign some of the subjects, by reason of their importance, to 
the original jurisdiction of the Supreme Court, and, in all other matters 
included in the article, to give the Supreme Court appellate jurisdiction 
" with such Exceptions, and under such Regulations as the Congress shall 
make " in order that there may be one law for the United States, one for 
the States, and one for the citizens thereof, in as far as what may be called 
federal questions are concerned. The impeachment of officers of the United 
States fell within the original jurisdiction of the Supreme Court in the 
draft of the Committee of Detail as reported on August 6th.^ This question 
was, however, ultimately removed from the judicial to the legislative branch 
of the Government of the Union. The requirement that the Chief Justice 



' Documentary History, Vol. iii, p. 626. 
' Ibid., p. 454. Article XI, Sec. 3. 



1 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 273 

of the Supreme Court should preside in the Senate during the trial of per- 
sons impeached by the House of Representatives shows that, although 
removed from the court, the procedure was nevertheless to be judicial, mak- 
ing of the Senate, when so sitting, a high court of impeachment. With this 
further exception, the grant of original jurisdiction in the Constitution 
stands as reported by the Committee of Detail, with slight changes of lan- 
guage later made by the Committee on Style. 

The balance of the clause, however, was changed in substance as well as 
in form by the Convention. Doubt having arisen in the mind of Gouverneur 
Morris as to whether the appellate jurisdiction of the Supreme Court already 
extended to matters of fact as well as lav/ and to cases of common as well 
as civil law, Mr. Wilson, speaking for the Committee, of which he was a 
member, said: 

The Committee he believed meant facts as well as law & Common as 
well as Civil law. The jurisdiction of the federal Court of Appeals had he 
said been so construed.^ 

In order to clear up all doubt on this point, Mr. Dickinson moved, and his 
motion was unanimously agreed to, " to add after the word ' appellate ' the 
words ' both as to law & fact,' " ^ and on the following day, the 28th, to 
improve the English, the phrase " supreme Court " was substituted for the 
expression " it " before " appellate jurisdiction." ^ As thus amended, the 
appellate jurisdiction of what we should today call the federal courts was 
agreed upon in the session of the 27th of August, with the exception of cer- 
tain formal changes proposed by the Committee on Style. 

How were the judges to be appointed for the Supreme Court and the 
inferior courts which Congress might be minded to establish? In the first 
section of Article IX of the draft as reported by the Committee of Detail, 
it was provided that " the Senate of the United States shall have power to 
make treaties, and to appoint Ambassadors, and Judges of the supreme 
Court." * But in the discussions on the appointment of the judges, which 
have already been set forth, the method suggested by Mr. Gorham, although 
then defeated, was eventually adopted and applied to appointments generally, 
by virtue whereof they are made by the executive, by and with the consent 
of the second branch, that is to say, the Senate. 

On the 23d of August the clause relating to the appointment of Ambas- 
sadors and judges came before the Convention, but no agreement was 

' Ibid., p. 627. 
= Ibid. 

'Ibid., p. 628. 
*Ibid., p. 451. 



274 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

reached, other than to refer the matter again to the Committee of Detail. 
This body did not, however, present a report; therefore the question went 
over to the Committee on Unfinished Portions, which considered the whole 
subject of appointments as properly before it and reported the following 
method, approved by the Convention on the 4th of September with the addi- 
tion of " Consuls " after the word " Ministers " : 

The President by and with the advice and Consent of the Senate, shall 
have power to make Treaties ; and he shall nominate and by and with the 
advice and consent of the Senate shall appoint ambassadors, and other 
public Ministers, Judges of the Supreme Court, and all other Officers of 
the U- S-, whose appointments are not otherwise herein provided for. But 
no treaty shall be made without the consent of two thirds of the members 
present.^ 

The framers of the Constitution were much worried as to the method of 
appointing judges and as to the tenure of the judges when appointed. They 
were creating the judiciary equal in rank and dignity to the legislative and 
executive, and as we think of even greater importance, for great as are the 
powers of the other departments they are nevertheless defined and interpreted 
by the judiciary, and in cases of excess of the Constitutional grant they are 
declared by the men of the law to be null and void. To do this, they should 
be independent of the legislative and executive, " to the end," to cite again 
the Constitution of IMassachusetts, " it may be a government of laws, and 
not of men." Fortunately for the administration of justice and the prevalence 
of law in these United States, their efforts were crowned with complete 
success. 

But the judiciary would not have stood out as the most prominent feature 
of the American system, and the judges could not have rendered the great 
services which they have to the American people, were it not for the second 
clause of the sixth article of the Constitution, which defined the sense in 
which the judicial power, extended by the third article to all cases in law 
and equity arising under the Constitution, the laws and treaties of the 
United States, was to be understood. It is therefore necessary to state the 
action upon Article VIII of the draft of the Constitution reported by the 
Committee of Detail, inasmuch as it declared the Constitution, the acts of 
Congress made in pursuance of the Constitution, and the treaties negotiated 
under the authority of the United States, the supreme law of the land, bind- 
ing as of course the governments. Federal and State, and all officers, State 
and Federal, political or judicial. 

It was clearly the intention of the large States, as indicated in the Vir- 

^ Documentary History, Vol. Ill, pp. 669-70. 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 275 

ginian plan, and of the smaller States, as set forth in the New Jersey plan, 
to make the laws of the new Union within the grant of power superior to 
the laws of the States as such. As amended by the Committee, the sixth 
article of the Virginian plan included treaties as well. Thus: 

The Natl Legislature ought to be empowered ... to negative all 
laws passed by the several States contravening in the opinion of the 
National Legislature, the articles of Union, or any treaties subsisting under 
the authority of the Union.^ 

This was even more explicitly stated in the sixth article of the New Jersey 
plan, reading as follows : 

Res<^. that all Acts of the U. States in Cong^ made by virtue & in pur- 
suance of the poAvers hereby & by the articles of confederation vested in 
them, and all Treaties made & ratified under the authority of the U. States 
shall be the supreme law of the respective States so far forth as those Acts 
or Treaties shall relate to the said States or their Citizens, and that the 
jHidiciary of the several States shall be bound thereby in their decisions, 
any thing in the respective laws of the Individual States to the contrary 
notwithstanding; and if any State, or any body of men in any State 
shall oppose or prevent y^. carrying into execution such acts or treaties, 
the federal Executive shall be authorized to call forth ye power of the 
Confederated States, or so much thereof as may be necessary to enforce 
and compel an obedience to such Acts, or an Observance of such Treaties.'' 

The Convention, however, did not approve this article. On July 17th 
the following proposal was before the Convention : 

To negative all laws passed by the several States contravening in the 
opinion of the Nat: Legislature, the articles of Union, or any treaties sub- 
sisting under the authority of ye Union.* 

After much debate and discussion, this proposition was adopted by a vote 
of seven to three of the States. Immediately thereupon, and without a 
break in the proceedings, Luther Martin of Maryland moved the following 
resolution, which was unanimously agreed to although it closely followed 
the New Jersey plan which had been rejected in all its parts : 

That the Legislative acts of the U. S. made by virtue & in pursuance of 
the articles of Union, and all treaties made & ratified under the authority 
of the U. S. shall be the supreme law of the respective States, as far as 
those acts or treaties shall relate to the said States, or their Citizens and 
inhabitants — & that the Judiciaries of the several States shall be bound 
thereby in their decisions, any thing in the respective laws of the individual 
States to the contrary notwithstanding.* 

* Ibid., p. 121. Session of June 13th. 

" Ibid., pp. 127-8. Session of June ISth. 

* Ibid., p. 35\. 

* Ibid., p. 353. 



276 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The resolution proposed by Mr. Martin and adopted by the Convention 
was referred to the Committee of Detail, which reported its Article VIII 
of the proposed Constitution. On August 23 the Convention took up this 
article as reported by the Committee of Detail, and, upon Mr. Rutledge's 
motion, it was amended and unanimously adopted in the following form : 

This Constitution & the laws of the U. S. made in pursuance thereof, 
and all Treaties made under the authority of the U. S. shall be the supreme 
law of the several States and of their citizens and inhabitants ; and the 
Judges in the several States shall be bound thereby in their decisions, any 
thing in the Constitutions or laws of the several States, to the contrary 
notwithstanding.^ 

Mr. Martin's resolution made acts of Congress within the grant of the 
Supreme Coustitution and the treaties negotiated by the United States not merely the 

Land° ^ laws of the United States but of each State of the Union, in so far as the 

acts or treaties relate to the States. Mr. Rutledge's amendment added the 
" Constitution " and struck out the qualifying clause regarding the States, 
with the result that the Constitution, the laws of the United States made in 
pursuance of the Constitution, and the treaties of the United States likewise 
made in pursuance of the Constitution became the supreme law of each of 
the States to the same extent as if the Constitution had been drafted by 
Conventions held within the States instead of ratified by Conventions spe- 
cially called for such purpose within the States. 

But the article as amended, while it no doubt pleased Mr. Madison, in 
that the Constitution, laws and treaties of the United States became the laws 
of the States as if each had been made in each instance by each of the States, 
did not please him in the matter of treaties, as he was set upon making the 
clause so clear, its language so precise and its meaning so unmistakable, as 
to give to the treaty paramount effect, in order to enable British creditors 
to recover their debts in accordance with the treaty of 1783 with Great 
Britain recognizing the independence of the United States. In a letter 
written to Mr. Randolph, dated April 4, 1787, a month and more before the 
meeting of the Convention, he had said : 

But does the establishment of the treaty as a law provide certainly for 
the recovery of debts? Ought it not [to] be paramount to law; or at least 
to be one of those laws which are, in my opinion, beyond repeal, from being 
combined with a compact ? * 

'■Documentary History, Vol. iii, p. 600. 

' M. D. Conway, Omitted Chapters of History Disclosed in the Life and Papers of 
Edmund Randolph, 1888, p. 72. 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 277 

Therefore, on August 25th, two days after the adoption of Mr. Rutledge's 
amendment, Mr. Madison, seconded by Gouverneur Morris, proposed to 
insert after " all treaties made " the phrase " or which shall be made," with 
the following result: 

And all treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land. 

In view of the letter to Mr. Randolph, written before the meeting of 
the Convention, we can understand the purpose which Mr. Madison had in 
mind; but it was not enough that Mr. Randolph knew it, it was necessary 
that the members of the Convention should know it and share it. Therefore, 
in proposing the amendment, he said, as he records in his Notes : 

This insertion was meant to obviate all doubt concerning the force of 
treaties preexisting, by making the words " all treaties made " to refer to 
them, as the words inserted would refer to future treaties.'^ 

As thus amended, the article was referred to the Committee on Style," 
which reported it back to the Convention in its present form, making the 
Constitution, the acts of Congress made in pursuance thereof, and treaties 
of the United States " the supreme law of the land " instead of " the supreme 
law of the respective States," — an expression which no doubt seemed to 
them to be a difiference of form but not of substance. It appears that this 
particular phrase was one with which the men of affairs of the day were 
familiar, inasmuch as eight Constitutions of the States referred to " the law 
of the land," a ninth to "the laws of the land"; and that the Articles of 
Confederation were considered part of " the law of the land " of each State. 
It further appears that the treaty with Great Britain recognizing the inde- 
pendence of the States and its provisions were stated to be part of the " laws 
of the land of each of the States " in resolutions unanimously passed by the 
Congress of the Confederation on March 21, 1787, on the eve of the Con- 
vention, and in the Federal letter addressed by the Congress on April 13, 
1787, advocating the repeal of acts of the State inconsistent with the terms 
of that treaty.^ These details, unimportant in themselves, have an added 
interest if it be borne in mind that four of the five members of the Com- 
mittee on Style, to which the Constitution was referred for its finishing 
touches, were members of the Congress which had adopted the resolutions 
and addressed the Federal letter to the States. Indeed the content of the 

' Documentary History, Vol. Ill, p. 619. 

' This Committee was composed of Messrs. Johnson, Hamilton, Morris, Madison, and 
King. 

'Journals of the American Congress, 1823, Vol. IV, pp. 735-8. 



278 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

resolutions may have been responsible for the form of the clause. It is at 
least in conformity with the relation created between the Government of 
the Union, on the one hand, and the States, on the other, in the matter of 
treaties. The resolutions are therefore quoted : 

Resolved, That the legislatures of the several states cannot of right 
pass any act or acts, for interpreting, explaining, or construing a national 
treaty or any part or clause of it; nor for restraining, limiting, or in any 
manner impeding, retarding, or counteracting the operation and execution 
of the same, for that on being constitutionally made, ratified and published, 
they become in virtue of the confederation, part of the law of -the land, 
and are not only independent of the will and power of such legr^atures, 
but also binding and obligatory on them. 

Resolved, That all such acts or parts of acts as may be now existing 
in any of the states, repugnant to the treaty of peace, ought to be forth- 
with repealed^ as well to prevent their continuing to be regarded as viola- 
tions of that treaty, as to avoid the disagreeable necessity there might . 
otherwise be of raising and discussing questions touching their validity and 
obligation. 

Resolved, That it be recommended to the several states to make such 
repeal rather by describing than reciting the said acts, and for that purpose 
to pass an act declaring in general terms, that all such acts and parts of 
acts, repugnant to the treaty of peace between the United States and his 
Britannic majesty, or any article thereof, shall be, and thereby are repealed, 
and that the courts of law and equity in all causes and questions cognizable 
by them respectively, and arising from or touching the said treaty, shall 
decide and adjudge according to the true intent and meaning of the same, 
any thing in the said acts or parts of acts to the contrary thereof in any wise 
notwithstanding.^ 

This is not the place to consider the origin, nature and the duty of 
judges to declare acts of Congress, constitutions and statutes of the States 
null and void in so far as they are contrary to the Constitution of the United 
States, which is also the Constitution of each of the States and therefore 
their fundamental law. It is nevertheless advisable to mention the way in 
which the judicial power of the United States, extended to cases in law and 
equity arising under the Constitution, acts of Congress and treaties, taken 
in connection with the clause of the Constitution under consideration, 
operates and renders the use of force against the States a stranger to the 
American system. 

It was admitted on all sides that the authority of the United States 
within the sphere of its grant by the States should prevail within the States, 
because the grant made it the law of each of the States. That, however, 
was not enough, because it would not, on that account, take precedence of 
another or subsequent law of the State. By making the Constitution, the 

^Journals of the American Congress, 1823, Vol. vi, pp. 729-30. Session of March 21st. 



PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 279 

acts of Congress passed in pursuance thereof, and the treaties of the United 
States negotiated in accordance with its terms, the supreme law of the land 
of each of the States, the Constitution, the acts of Congress, and the treaties 
became laws of each of the States, just as if they had originated in each and 
had been made for each and by each for itself. 

Admitting this to be so, what was to be done to the United States 
if a State framed a constitution or passed a law inconsistent with the Con- 
stitution ? The national legislature ought to possess the power " to nega- 
tive all laws," said Mr. Madison, supposing him to have been the author 
of the Virginian plan, " passed by the several States, contravening in the 
opinion of the National Legislature the articles of Union; and to call forth 
the force of the Union ag^'. any member of the Union failing to fulfil its 
duty under the articles thereof." ^ But a little reflection caused him to Question of 
renounce the plan of coercing the States, which he did on the floor of the Sanction 
Convention within two days of its first session,^ ultimately and with much 
misgiving relying upon the intervention of the courts to prevent a difficulty 
which he foresaw might present itself. Again, what was to be done with 
an act of Congress itself contrary to the terms of the Constitution? Have 
it passed upon by a council of revision, of which judges of the Supreme 
Court should be members, said Mr. Madison, and he and his friends clung 
to each of these proposals with dogged pertinacity. 

But the Convention was wiser than any of its members, including even of'Law v, 
the father of the Constitution. Admitting the necessity of coercion, the otTo°^ 
enlightened body preferred the coercion of law to the coercion of force, and 
in entrusting the interpretation of the laws to the courts and, in last resort, 
to the Supreme Court of the United States. As a step toward the desired 
goal, the judicial power of the United States was extended to all cases in 
law and equity arising under the Constitution, acts of Congress passed in 
pursuance thereof, and treaties made according to its terms. These were 
declared not merely the law of each of the States but the supreme law of 
the States, and this extension of the judicial power enabled any person in 
any State of the Union injured in his person or property to test the validity 
of the interpretation given to the Constitution, the validity of the law or of 
the treaty in a court of justice as a case in law or equity, as it arose under 
one or the other heading. In the course of the trial the Constitution would 
necessarily be interpreted and applied by the court. The act of Congress 
or treaty would be declared to be either in accord with the Constitution or 
contrary to it. In the latter case the act or treaty would be held null and 
vaid, and the transaction whereof the litigant complained would be illegal 

* Documentary History, Vol. Ill, p. 18. Session of May 29th. 
'Ibid., pp. 33-4. Session of May 31st. 



280 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

and the injury to person and property redressed. The incorrect interpreta- 
tion of the Constitution of the Union or of the States, the treaty itself, and 
the statute of Congress or of the States, would be set aside in the sense that 
it would not be regarded by the court as a justification for the act committed 
under its cover. Repeated acts of a like nature would be declared illegal 
by the courts, so that, to all intents and purposes, the interpretation of the 
Constitution of the United States, upon which reliance was based, would be 
disapproved, and the act or treaty involved declared to be to all intents and 
purposes invalid. The purposes which Mr. Madison and his friends had in 
mind would be accomplished without the intervention of force and the State 
itself would not be involved, inasmuch as the suit was against an individual 
of the State claiming under its authority as a defense for his action. This 
process and its results have never been more adequately or more happily 
described than by Sir Henry Maine in the following passage, to be found 
in his essay on the Constitution of the United States: 

The Supreme Court of the United States, which is the American Fed- 
eral institution next claiming our attention, is not only a most interesting 
but a virtually unique creation of the founders of the Constitution. The 
functions which the Judges of this Court have to discharge under provi- 
sions of the Constitution arise primarily from its very nature. The Execu- 
tive and Legislative authorities of the United States have no powers, except 
such as are expressly conferred on them by the Constitution itself ; and, 
on the other hand, the several States are forbidden by the Constitution to 
do certain acts and to pass certain laws. What then is to be done if these 
limitations of power are transgressed by any State, or by the United 
States? The duty of annulling such usurpations is confided by the Third 
Article of the Constitution to the Supreme Court, and to such inferior 
Courts as Congress may from time to time ordain and establish. But this 
remarkable power is capable only of indirect exercise ; it is called into 
activity by " cases," by actual controversies, to which individuals, or States, 
or the United States, are parties. The point of unconstitutionality is raised 
by the arguments in such controversies ; and the decision of the Court fol- 
lows the view which it takes of the Constitution. A declaration of uncon- 
stitutionality, not provoked by a definite dispute, is unknown to the Supreme 
Court. 

The success of this experiment has blinded men to its novelty. There 
is no exact precedent for it, either in the ancient or in the modern world. 
The builders of Constitutions have of course foreseen the violation of con- 
stitutional rules, but they have generally sought for an exclusive remedy, 
not in the civil, but in the criminal law, through the impeachment of the 
offender. And, in popular governments, fear or jealousy of an authority 
not directly delegated by the people has too often caused the difficulty to be 
left for settlement to chance or to the arbitrament of arms. " Je ne pense 
pas," wrote De Tocqueville, in his " Democratic en Amerique," " que 
jusqu' a present aucune nation du monde ait constitue le pouvoir judiciaire 
de la meme maniere que les Americains." ^ 

* Maine, Popular Government, 1886, pp. 217-8. 






PROTOTYPE OF A COURT OF INTERNATIONAL JUSTICE 281 

The coercion of law was consciously preferred to the coercion of force, 
and the members of the Convention were themselves aware of the success 
of their labors. Thus, Mr. Madison, in a letter already quoted to his friend 
Thomas Jefferson after the close of the Convention, said : 

A voluntary observance of the federal law by all the members could 
never be hoped for. A compulsive one could evidently never be reduced 
to practice, and if it could, involved equal calamities to the innocent and 
the guilty, the necessity of a military force, both obnoxious and dangerous, 
and, in general, a scene resembling much more a civil war than the admin- 
istration of a regular Government. Hence was embraced the alternative 
of a Government which, instead of operating on the States, should operate 
without their intervention on the individuals composing them.^ 

But the most notable and far-reaching statement is that likewise previously 
quoted of Mr. Oliver Ellsworth, a delegate from Connecticut, soon to be a 
Senator under the Constitution which he had helped to frame and Chief 
Justice of the Supreme Court of the United States. In the convention of 
Connecticut, called to ratify the Constitution, Mr. Ellsworth used, it may 
appropriately be said, the language of advocate and of statesman, of com- 
mentator and of prophet : 

This Constitution defines the extent of the powers of the general gov- 
ernment. If the general legislature should at any time overleap their 
limits, the judicial department is a constitutional check. If the United 
States go beyond their powers, if they make a law which the Constitution 
does not authorize, it is void; and the judicial power, the national judges, 
who, to secure their impartiality, are to be made independent, will declare 
it to be void. On the other hand, if the states go beyond their limits, if 
they make a law which is a usurpation upon the general government the 
law is void; and upright, independent judges will declare it to be so. Still, 
however, if the United States and the individual states will quarrel, if they 
want to fight, they may do it, and no frame of government can possibly 
prevent it. It is sufficient for this Constitution, that, so far from laying 
them under a necessity of contending, it provides every reasonable check 
against it. But perhaps, at some time or other, there will be a contest; 
the states may rise against the general government. If this do take place, 
if all the states combine, if all oppose, the whole will not eat up the mem- 
bers, but the measure which is opposed to the sense of the people will 
prove abortive. . . . 

Hence we see how necessary for the Union is a coercive principle. No 
man pretends the contrary : we all see and feel this necessity. The only 
question is. Shall it be a coercion of law, or a coercion of arms? There is 
no other possible alternative. Where will those who oppose a coercion of 
law come out? Where will they end? A necessar}' consequence of their 
principles is a war of the states one against the other. I am for coercion 
by law — that coercion which acts only upon delinquent individuals. This 
Constitution does not attempt to coerce sovereign bodies, states, in their 

1 The Writings of James Madison, Hunt ed.. Vol. V, p. 19. Letter of October 24, 1787. 



2^2 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

political capacity. No coercion is applicable to such bodies, but that of an 
^ armed force. If we should attempt to execute the laws of the Union by 
^<* sending an armed force against a delinquent state, it would involve the good 
^ and the bad, the innocent and guilty, in the same calamity. 

But this legal coercion singles out the guilty individual, and punishes 
him for breaking the laws of the Union.^ 

It is obvious that the Society of Nations will be confronted with problems 
similar to if not identical with the problems which faced the framers of the 
American Constitution when they set about to create a Supreme Court of the 
Union which they were rendering more perfect. The Convention creating the 
closer union of the Society, like the Constitution creating the more perfect 
imion of American States, will need to be interpreted, and the experience of 
the United States shows that this can best be done by a permanent court of 
the union. 

General conventions or special treaties to which States of the Society of 
Nations are parties, will need to be interpreted ; but, here again, the experience 
of the American Union, with its tribunal, should be enlightening. 

A court of the Society will necessarily be a court of limited jurisdiction; 
but, with the growth of confidence in that tribunal, its jurisdiction will be 
enlarged in the way pointed out by the Supreme Court itself ; that is to say, 
by an agreement to submit to the tribunal questions hitherto considered politi- 
cal, questions which, by the very act of submission, become judicial. 

Gradually, as the result of experience, the usefulness of the court will 
be thus enhanced. The possibility of the substitution of law for physical 
force may dawn upon the statesmen of the modern world just as it' dawned 
upon the framers of the American Union, and the conduct of nations, like 
the conduct of States of the American Union, be guided and eventually con- 
trolled by the principles of justice. 

Coercion there must be, for nations, as shown by experience, are even 
less inclined than individuals to brook control; but the choice is, and it is 
believed the choice must always be, either for the coercion of law, or for 
the coercion of arms. 

* Elliot, Debates, Vol. II, pp. 196-7. 



XIV i 

THE ADMISSION OF NEW STATES 

No principle of general law is more universally acknowledged, than the perfect equality 
of nations. Russia and Geneva have equal rights. It results from this equality, that no one 
can rightfully impose a rule on another. Each legislates for itself, but its legislation can 
operate on itself alone. A right, then, which is vested in all, by the consent of all, can 
be divested only by consent; and this trade, in which all have participated, must remain 
lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule 
for others, none can make a law of nations ; and this traffic remains lawful to those whose 
governments have not forbidden it. {Chief Justice Marshall in The Antelope, lo Wheaton, 
66, 122, decided in 1825.) 

Section 13. And for extending the fundamental principles of civil and religious liberty, 
which form the basis whereon these republics, their laws and constitutions, are erected; 
to fix and establish those principles as the basis of all laws, constitutions, and govern- 
ments, which forever hereafter shall be formed in the said territory ; to provide, also, for 
the establishment of States, and permanent government therein, and for their admission 
to a share in the Federal councils on an equal footing with the original States, at as early 
periods as may be consistent with the general interest: 

Section 14. It is hereby ordained and declared, by the authority aforesaid', that the 
following articles shall be considered as articles of compact, between the original States 
and the people and States in the said territory, and forever remain unalterable, unless by 
common consent, to wit: 

Article I. No person, demeaning himself in a peaceable and orderly manner, shall 
ever be molested on account of his mode of worship, or religious sentiments, in the 
said territories. 

Article II. The inhabitants of the said territory shall always be entitled to the 
benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate 
representation of the people in the legislature, and of judicial proceedings according to 
the course of the common law. All persons shall be bailable, unless for capital offences, 
where the proof shall be evident, or the presumption great. All fines shall be mod- 
erate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived 
of his liberty or property, but by the judgment of his peers, or the law of the land, 
and should the public exigencies make it necessary, for the common preservation, to 
take any person's property, or to demand his particular services, full compensation shall 
be made for the same. And, in the just preservation of rights and property, it is 
understood and declared, that no law ought ever to be made, or have force in the said 
territory, that shall, ni any manner whatever, interfere with or affect private contracts, 
or engagements, bona fide, and without fraud previously formed. 

Article III. Religion, morality, and knowledge being necessary to good government 
and the happiness of mankind, schools and the means of education shall forever be 
encouraged. . . 

Article IV. The said territory, and the States which may be formed therein, shall 
forever remain a part of this confederacy of the United States of America, subject to 
the Articles of Confederation, and to such alterations therein as shall be constitu- 
tionally made ; and to all the acts and ordinances of the United States in Congress 
assembled, conformable thereto. . . . 

Article V. There shall be formed in the said territory not less than three nor 
more than 'five States; and the boundaries of the States, as soon as Virginia shall alter 
her act of cession and consent to the same, shall become fixed and established as 
follows, to wit : . . . 

And whenever any of the said States shall have sixty thousand free inhabitants 
therein, such State shall be admitted, by its delegates, into the Congress of the United 
States, on an equal footing with the original States, in all respects whatever; and shall 

283 



284 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

be at liberty to form a permanent constitution and State government: Provided, The 
constitution and government, so to be formed, shall be republican, and in conformity 
to the principles contained in these articles, and, so far as it can be consistent with 
the general interest of the confederacy, such admission shall be allowed at an earlier 
period, and when there may be a less number of free inhabitants in the State than 
sixty thousand. 

Article VI. There shall be neither slavery nor involuntary servitude in the said 
territory, otherwise than in the punishment of crimes, whereof the party shall have 
been duly convicted; Provided always. That any person escaping into the same, from 
whom labor or service is lawfully claimed in any one of the original States, such 
fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her 
labor or service as aforesaid. (An Ordinance for the, government of the territory of 
the United States northwest of the river Ohio, July 13, 1787, Revised Statutes of the 
United States, 1878, pp. 15 -16.) 

Section 3. New States may be admitted by the Congress into this Union ; but no new 
State shall be formed or erected within the jurisdiction of any other State ; nor any State 
be formed by the junction of two or more States, or Parts of States, without the Consent 
of the Legislatures of the States concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the United States ; and nothing in 
this Constitution shall be so construed as to Prejudice any Claims of the United States, or 
of any particular State. 

Section 4. The United States shall guarantee to every State in this Union a Repub- 
lican Form of Government, and shall protect each of them against Invasion; and on Appli- 
cation of the Legislature, or of the Executive (when the Legislature cannot be convened) 
against domestic Violence. {Constitution of the United States, Article IV.) 

So far as this court has found occasion to advert to the effect of enabling acts as 
affirmative legislation affecting the power of new States after admission, there is to be 
found no sanction for the contention that any State may be deprived of any of the power 
constitutionally possessed by other States, as States, by reason of the terms in which the 
acts admitting them to the Union have been framed. . . . 

The plain deduction from this case [Pollard's Lessee v. Hagan, 3 Howard, 212, decided 
in 1845] is that when a new State is admitted into the Union, it is so admitted with all 
of the powers of sovereignty and jurisdiction which pertain to the original States, and 
that such powers may not be constitutionally diminished, impaired or shorn away by 
any conditions, compacts or stipulations embraced in the act under which the new State 
came into the Union, which would not be valid and effectual if the subject of congressional 
legislation after admission. . . . 

Has Oklahoma been admitted upon an equal footing with the original States? If 
she has, she by virtue of her jurisdictional sovereignty as such a State may determine 
for her own people the proper location of the local seat of government. She is not equal 
in power to them if she cannot. 

In Texas v. White, 7 Wall. 700. 725, Chief Justice Chase said in strong and memorable 
language that, " the Constitution, in all of its provisions looks to an undestructible Union, 
composed of indestructible States." 

In Lane County v. Oregon, 7 Wall. 76, he said: 

" The people of the United States constitute one nation, under one government, and 
this government, within the scope of the powers with which it is invested, is supreme. 
On the other hand, the people of each State compose a State, having its own govern- 
ment, and endowed with all the functions essential to separate and independent existence. 
The States disunited might continue to exist. Without the States in union there could 
be no such political body as the United States." 

To this we may add that the constitutional equality of the States is essential to the 
harmonious operation of the scheme upon which the Republic was organized. When 
that equality disappears we may remain a free people, but the Union will not be the 
Union of the Constitution (Mr. Justice Lurton in Coyle v. Smith, 221 United States 
Reports, 559, 570, 573, 579-58o. decided in 19 H-) 

So the Constitution operated to incorporate such of the old states as ratified it: so 
it did as new states have been admitted : so it must operate in future. It was a cession, 
by nine states, of so much of their separate power as was necessary for federal purposes, 
to the body politic, called the United States, the " American Confederacy," " Republic," 



THE ADMISSION OF NEW STATES 285 

or " Empire " ; as a term of designation, including states and territories. The consti- 
tution was the charter of this federal corporation, as those of the different states were 
the charters of their state corporations of government; each with power to legislate accord- 
ing to the terms of their respective charters, subject only to that charter which had been 
made supreme for its designated purposes. (Mr. Justice Baldwin, A General View of the 
Origin and Nature of the Constitution and Government of the United States, 1837, p. 84.) 



CHAPTER XIV 

THE ADMISSION OF NEW STATES 

The As throwing very great light upon the views of public men at the time 

ordinrnci of the Constitution, the Act of Congress of July 13, 1787, commonly called 

the Northwest Ordinance/ should receive careful attention, because it was 
passed at the very time when the Federal Convention was in session. Indeed 
some of the members of the Convention were obliged to absent themselves 
in order to take part in the Congress then meeting in New York. 

It is also important to note in this connection that the ordinance was 
approved by the Act of August 7, 1789, passed by the first Congress held 
under the Constitution, which continued it in effect.^ The ordinance there- 
fore has the double advantage in its favor, of being drafted and promulgated 
during the session of the Federal Convention, and of being approved by 
the government installed under the Constitution. 

The purpose of the Act is stated in its title, " An Ordinance for the Gov- 
ernment of the Territory of the United States north-west of the river Ohio," 
that vast tract of territory ceded to the United States March 1, 1784, by 
the Virginian delegates in Congress, pursuant to the authorization of the 
General Assembly of that great State, December 20, 1783, by which the 
struggling Confederation became possessed of an imperial domain, so that 
if Virginia can be, as it has been called, the mother of Presidents, it can, 
with equal propriety, be called the mother of States. 

The ordinance consists practically of two parts, the first of thirteen sec- 
tions dealing with the organization of a government for the territory and 
with the details of that government; the second of six articles appended to 
the fourteenth section in the nature of a bill of rights, termed in the Act 
itself, " articles of compact, between the original states and the people and 
states in the said territory," and to " remain unalterable, unless by common 
consent." 

For purposes of government, this vast tract was to be considered as a 
single district, to be subject to future division by Congress. A governor, 
to reside in the district, was to be appointed by the Congress for a period 
of three years " unless sooner revoked by Congress." There was to be a 
General Assembly or a Legislature, and there was to be a court. We thus 

* Journals of the American Congress, Vol. IV, pp. 752-4. 
' U. S. Statutes at Large, vol. 15, p. 50. 

286 



THE ADMISSION OF NEW STATES 287 

have the three branches of government, beginning, however, with the execu- 
tive, instead of the legislative, as in the Constitution, apparently because the 
executive was to prepare the way for the other branches. 

As the judges were to cooperate with him in this task, the judiciary is 
mentioned before the creation of the legislature, and the determination of 
its functions. Thus it is stated in Section 4 that " There shall also be 
appointed a court to consist of three judges, any two of whom to form a 
court, who shall have a common law jurisdiction, and reside in the district 
. . . and their commissions shall continue in force during good behaviour." 

The first need of a district was order, and this was to be brought about 
through law. Therefore it was provided in Section 5 that " The governor 
and judges, or a majority of them, shall adopt and publish in the district 
such laws of the original states, criminal and civil, as may be necessary, and 
best suited to the circumstances of the district, and seport them to Congress, 
from time to time." These laws were to be in force, unless disapproved by 
Congress, until the organization of the General Assembly, and subject to 
that body when it should come into being. 

The governor was to be commander-in-chief of the militia, to appoint 
and commission all below the rank of general officers, who were to be 
appointed and commissioned by Congress. And the governor, prior to the 
meeting of the General Assembly, was to appoint magistrates and other civil 
officers in each county or township, and indeed, to appoint all magistrates 
and other civil officers, not otherwise provided for, during the continuance 
of the temporary government, the duties and powers whereof were to be 
fixed by the General Assembly when organized. It was also the duty of the 
governor to see to the execution of the laws, and to execute civil and 
criminal processes. 

Whenever there were in the district five thousand free male inhabitants 
of full age, a General Assembly was to be established, with one representa- 
tive for every five hundred such inhabitants until the number of represen- 
tatives should increase to twenty-five, after which the proportion of 
representatives was to be regulated by the legislature, and the representatives 
themselves were to be elected for a period of two years. The provisions 
contained in Section 11 concerning the General Assembly are of especial 
interest, inasmuch as they show the Congress drawing upon the experience 
of the colonists, as was to be expected, and which, indeed, could hardly be 
obviated. Thus, the General Assembly or Legislature was to consist of 
" the governor, legislative council, and a house of representatives." The 
council was to consist of five members to serve for a period of five years, 
unless sooner removed by Congress, and any three of them were to consti- 
tute a quorum. The legislature was to present the name of ten persons to 



288 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Compact 
Between 
People of 
States and 
Northwestei 
Territory 



the Congress, from whom that body should choose five, and upon a vacancy, 
two names, from which the Congress should choose one. This process was 
apparently to be repeated four months before the expiration of the five year 
term. 

The governor, appointed by the Congress, the legislative council, likewise 
appointed by the Congress, and the house of representatives elected by the 
inhabitants having the necessary qualifications, were vested with the 
authority to " make laws, in all cases, for the good government of the dis- 
trict, not repugnant to the principles and articles in this ordinance estab- 
lished and declared." And it was further provided that " all bills having 
passed by a majority in the house, and by a majority in the council " were 
to be referred to the governor for his assent, and that " no bill or legisla- 
tive act whatever, shall be of any force without his assent." 

Here we have the colonial governor, the governor's council, and the 
assembly with the power of veto of the governor, who was, in addition, to 
possess the power " to convene, prorogue and dissolve the general assembly " 
when in his opinion it should be expedient. 

Inasmuch as the colonists maintained that taxation without representa- 
tion was tyranny, the council and house in joint session and by joint ballot 
were to elect a delegate to the Congress who should have a seat therein 
*' with the right of debating, but not of voting during this temporary gov- 
ernment." The members of Congress recognized the gravity of the step 
they were taking, and the necessity of putting into practice the doctrine they 
had preached. They therefore prefixed to the declaration of rights which 
they expressly termed a " compact between the original states, and the 
people and states in the said territory," what may be called a preamble " for 
extending the fundamental principles of civil and religious liberty, which 
form the basis whereon these republics [apparently the thirteen original 
States], their laws and constitutions are erected; to fix and establish those 
principles as the basis of all laws, constitutions and governments, which 
forever hereafter shall be formed in the said territory; to provide also for 
the establishment of states, and permanent government therein, and for their 
admission to a share in the federal councils on an equal footing with the 
original states, at as early periods as may be consistent with the general 
interest." 

The first two Articles are thus worded : 



Art. 1st. No person, demeaning himself in a peaceable and orderly 
manner, shall ever be molested on account of his mode of worship or 
religious sentiments, in the said territory. 

Art. 2d. The inhabitants of the said territory, shall always be entitled 
to the benefits of the writ of habeas corpus, and of the trial by jury; of 



THE ADMISSION OF NEW STATES 289 

a proportionate representation of the people in the legislature, and of judi- 
cial proceedings according to the course of the common law. All persons 
shall be bailable, unless for capital offences, where the proof shall be evi- 
dent, or the presumption great. All fines shall be moderate ; and no cruel 
or unusual punishments shall be inflicted. No man shall be deprived of his 
liberty or property, but by the judgment of his peers, or the law of the 
land, and should the public exigencies make it necessary, for the common 
preservation, to take any person's property, or to demand his particular 
services, full compensation shall be made for the same. And in the just 
preservation of rights and property, it is understood and declared, that no 
law ought ever to be made, or have force in the said territory, that shall, 
in any manner whatever, interfere with, or affect private contracts or 
engagements, bona fide, and without fraud previously formed. 

The fourth Article is interesting, as it subjects the territory to the Arti- 
cles of Confederation, the alterations made therein, " and to all the acts and 
ordinances of the United States in Congress assembled, conformable 
thereto." 

This is clearly imperialism : the district subject to the realm; to acts made 
in accordance with its Constitution by the framers thereof. Nay more, the 
inhabitants and settlers within the territory were " to pay a part of the fed- 
eral debts, contracted or to be contracted, and a proportional part of the 
expenses of government, to be apportioned on them by Congress, according 
to the same common rule and measure, by which apportionments thereof 
shall be made on the other states." The taxes, however, to meet these obli- 
gations, were to be raised by their own legislatures. 

Out of this vast territory not less than three, nor more than five States 
were to be created, endowed with the right to form a permanent Constitu- 
tion and state government whenever there were sixty thousand free inhabit- 
ants in any one thereof, and to be thereupon admitted into the Union upon 
an equality with the original States, " provided the constitution and govern- 
ment so to be formed, shall be republican, and in conformity to the principles 
contained in these articles." Indeed, they were to be admitted before they 
had sixty thousand inhabitants if this could conveniently be done. 

And in every foot of this vast domain, it was specifically provided in the 
language of Article 6, to be later incorporated in the thirteenth amendment 
to the Constitution of the United States, that : " There shall be neither 
slavery nor involuntary servitude in the said territory, otherwise than in the 
punishment of crimes, whereof the party shall have been duly convicted." 

Here we have the Congress sitting during the Federal Convention, giv- 
ing its approval to the threefold distribution of power, providing for the 
government of a vast domain which should be broken up into territories and 
in the course of time admitted as States of the Union, specifying the funda- 
mentals not merely of law and of order, but the principles which should 



290 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

enter into a bill of rights for the protection against the central government 
of the inhabitants of the district or districts into which the territory should 
be divided, and expressed in the form of a compact between the thirteen 
original States, whose representative the Congress was, with the peoples and 
political subdivisions of the Northwest Territory. The ordinance not only 
throws light upon the proceedings of the Federal Convention and upon the 
mental attitude of its members; it is the light, and it is the mental attitude. 

The Constitution was devised primarily for the thirteen confederated 
States of America by official representatives of twelve of them. However, 
the statesmen who sat in the Federal Convention contemplated a Union com- 
posed of a larger number of States, for the Congress of the Confederation 
had, as has been said, pledged the faith of the United States to create States 
within the northwestern territory. Movements were elsewhere on foot, 
and indeed far advanced, to create States in the outlying portions of Vir- 
ginia and of North Carolina which shortly resulted in the creation and admis- 
sion to the Union of the States of Kentucky and Tennessee. 

The good people of Vermont declined to be citizens of Massachusetts, 
of New Hampshire, of New York, although the latter two States were 
importunate. Vermont, however, stood to its guns in the literal sense of 
that term, resisting persuasion and refusing to yield to force. It considered 
itself to be a separate and distinct State, organized itself as such, provided 
a Constitution under which it governed itself, feeling itself to be an Ameri- 
can State as free, as sovereign, and as independent as those of the Confed- 
eration of which it was not a member; ready and willing, however, to asso- 
ciate itself with them in the more perfect Union. 

The Constitution would therefore have to provide for such contingencies, 
as questions of this kind were bound to arise and be decided in Convention. 
No plan could emanate from the Virginian delegation that did not contem- 
plate it, because the cession of the claims of Virginia to the Northwestern 
Territory was conditioned upon the creation of States within that vast 
domain extending from the north of the Ohio to the Mississippi River. 
Indeed, the State of Kentucky was already taking form and shape within 
the territorial limits of Virginia. Therefore the tenth and in a less degree 
the eleventh of Mr. Randolph's resolutions dealt with this question. The 
tenth recommended that " provision ought to be made for the admission of 
States lawfully arising within the limits of the United States, whether from 
a voluntary junction of Government & Territory or otherwise, with the con- 
sent of a number of voices in the National Legislature less than the whole." ^ 
The eleventh resolution provided that " a Republican Government & the 
territory of each State, except in the instance of a voluntary junction of 
' Documentary History of the Constitution, Vol. Ill, p. 19. Session of May 29th. 



THE ADMISSION OF NEW STATES 291 

Government & territory, ought to be guaranteed by the United States to 
each State." Mr. Patterson's plan proposed, on behalf of the small States 
preferring a revision of the Articles of Confederation rather than a new 
scheme of government without reference to them, that " provision be made 
for the admission of new States into the Union." ^ 

A feature thus appearing in the plans of the large and of the small 
States was one of general import which would require and receive settle- 
ment. In this matter the erstwhile colonies found themselves confronted 
with the problem that had faced the mother country in its relation with the 
colonies. And it must be said that some men of the large States looked at Attitude 

° of Large 

it rather from the standpoint of the imperialists on the other side of the states 
water than as statesmen of the new world recognizing the equal rights of 
the parts of Empire as well as the rights of the Empire itself. The advo- 
cates of this school apparently wished to center all power in the Atlantic 
States and to place the new States not merely in an inferior position, but 
also to maintain them in continual tutelage. This attitude was perhaps most 
frankly and brutally expressed by Gouverneur Morris, a delegate from the 
large State of Pennsylvania. There were, however, notable exceptions to 
be found among the delegates of the larger States, especially George Mason 
and James Madison of Virginia, who were as outspoken in their views of 
the equality of western States as Gouverneur Morris was against it. 

If the western boundaries of each of the existing States had been clear, 
definite and fixed, the question might have been as to whether the territory 
to the west of their boundaries was to be acquired by the Union or appor- 
tioned among the individual States as such. In the latter case, even if it 
had been possible, there would have been difficulty in ^allotting the territory 
to be obtained by each, as in the instance of a State situated as Rhode 
Island, cut off from all access to the west except through the territory of its 
neighbors. The question was complicated by the fact that only the western 
boundaries of New Hampshire, Rhode Island, New Jersey, Pennsylvania, 
Delaware and Maryland were definite, using that term in a generous sense, 
whereas the remaining States of Massachusetts, Connecticut, New York, 
Virginia, North Carolina, South Carolina and Georgia claimed by charter 
or irrespective of charter to extend indefinitely to the west.- 

'■Documentary History of the Constitution, Vol. iii, p. 128. Session of June ISth. 

'The situation obtaining at this time is thus described in American History Leaflets, No. 
22, "Documents Illustrating: State Land Claims and Cessions, 1776-1802," ed. by Albert 
Bushnell Hart and Edward Channing, pp. 1-2 : 

" When the Revolution was impending, the boundaries between colonies had been for 
the most part adjusted; and by the Proclamation of 1763 no governors were to 'grant 
warrants of survey or pass patents for any lands beyond the heads or sources of any of the 
rivers which fall into the Atlantic Ocean from the west or northwest; or upon any lands 
whatever, which, not having been ceded to or purchased by us, as aforesaid, are reserved 
to the said Indians or any of them.' 



292 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The view of Maryland, concurred in by the States making no claim to 
the western territory, was that it ought " to be considered as a common 
property subject to be parcelled out by Congress into free, convenient and 
independent governments," inasmuch as it consisted of territory ceded by 
the treaty of Paris of 1763 to the British Crown and conquered from the 
mother country by the united efforts of the thirteen colonies. Maryland felt 
so strongly on this point that it refused to enter the Confederation unless 
and until the western domain was secured for the common benefit. 

Against this action of its neighbor, Virginia protested, since it claimed 
not only the territory to the South of the Ohio, from which the State of 
Kentucky was carved, but also the territory to the northwest of the Ohio 
extending to the Mississippi River. The first step toward a compromise was 
taken by the State of New York, which, on February 19, 1780, empowered 
its delegates to concede for the common benefit a portion of the territory to 
which it laid claim.^ On September 6th of the same year the Congress, 
encouraged by this action on the part of New York, advised the States to 
surrender a portion of their claims to the territory in question, inasmuch as 
without such action the Union under the Articles of Confederation essential 
" to our very existence as a free, sovereign and independent people " could 
not be established; and the States could not hope to preserve their claims, 
as to do so would endanger the Confederation, with the consequence that 
they would lose credit and confidence at home and prestige and reputation 
abroad. 

On the 10th of October the Congress took a final step,^ in as far as any 

"The Revolution brought about several important changes in the territorial conditions 
of the former colonies. As soon as the English authority was extinguished, the States 
which had once had charters asserted that the territory embraced by such charters reverted 
to them. In the second place, the restriction to land east of the Appalachian water-shed 
and outside Indian tracts was held to have no more force. In the third place, several 
communities, notably Vermont, asserted that they were no longer included within the State 
of which they had been a part while it was still a colony._ And in 1778 Virginia troops 
conquered the Northwest region, then a part of the English Province of Quebec. The 
result was confusion and clashing of interests. Western New York and Northern Penn- 
sylvania were claimed by Massachusetts and Connecticut respectively; New York, Massa- 
chusetts and Connecticut, and Virginia all claimed the same parcel of territory north of 
the Ohio River ; and the States with strictly defined boundaries, especially Maryland, 
protested against the appropriation by individual States of lands gained by the common 
effort of the Revolutionary War. ^ 

"The controversy del^^yed the ratification of the Articles of Confederation and was 
finally adjusted by a series of agreements between the competing States, and a series of 
cessions to the Union, not completed until 1802." 

^ This deed of cession was authorized by Congress March 1, 1781. Journals of the 
Continental Congress, Vol. xix, pp. 211-13. 

^ The pledge of Congress took the following form : 

Resolved, That the unappropriated lands that may be ceded or relinquished to the 
United States, by any particular states, pursuant to the recommendation of Congress of the 
6 day of September last, shall be disposed of for the common benefit of the United States 
and be settled and formed into distinct republican states, which shall become members of 
the federal union, and have the same rights of sovereignty, freedom and independence, 
as the other states : that each state which shall be so formed shall contain a suitable 



THE ADMISSION OF NEW STATES 293 

measure taken by it could be final, resolving that the lands to which the 
States should cede their claims should be formed into republican States upon 
a footing of equality with those forming the Union which, by the second 
of the Articles of Confederation, was declared to be free, sovereign and 
independent. 

The question had now become largely one between Virginia and Mary- Virginia 
land. " Preferring the good of the country to every object of smaller cilim'^"'^ " 
importance," the State of Virginia sacrificed whatever claim it may have 
had to the west and the northwest by ofiFering to cede it to the Union, thus 
removing from Maryland all ground for further delay in acceding to the 
Confederation. Yielding to the pressure of the States and to the desire of 
France that the Union be consummated in the interest of the common cause, 
the State of Maryland authorized, on February 2, 1781, its delegates to 
ratify the Articles. This was done on March 1, 1781. Pursuant to the 
agreement, Virginia authorized, by an act of December 20, 1783,^ its dele- 
gates to execute a deed of cession to the territory in question to the United 
States, which was done on March 1, 1784, and on April 23d of the same 
year the Congress provided a temporary government for the ceded territory.^ 

It was evident that the United States in Congress assembled had earnestly 
sought to quiet title to the western territory, in order to open it to settlers 
upon what then was and now must be called equitable terms. The delegates 
of the States had pledged the Confederation to the admission of tracts to the 
west as States upon a footing of equality when the time should come for 
such action. The members of the Federal Convention who in some instances 
were, as has been stated, members of the very Congress which proposed the 
Northwest Ordinance during the sessions of the Convention, appeared to 
have taken it as a matter of course that the territory west of the mountains 
would be carved into States and admitted to the more perfect Union upon 
terms of equality. Therefore Article XVII of the first draft of the Con- 
stitution, reported on August 6, 1787, provided that new States should be 
admitted on the same terms with the original States. Mr. Gouverneur 
Morris moved to strike out this clause, saying that " he did not wish to bind 
down the Legislature to admit Western States on the terms here stated . . . 

extent of territory, not less than one hundred nor more than one hundred and fifty miles 
square, or as near thereto as circumstances will admit: 

That the necessary and reasonable expences which any particular state shall have in- 
curred since the commencement of the present war, in subduing any of the British posts, or 
in maintaining forts or garrisons within and for the defence, or in acquiring any part of 
the territory that may be ceded or relinquished to the United States, shall be reimbursed; 

That the said lands shall be granted and settled at such times and under such regula- 
tions as shall hereafter be agreed on by- the United States in Congress assembled, or any 
nine or more of them. Journals of the Continental Congress, Vol. XVIII, p. 915. 

' See American History Leaflets, No. 22, pp. 12-15. 

'Journals of the American Congress, Vol. IV, pp. 379-80. 



294 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



New States 
on Equality 
with Old 



He did not wish however to throw the power into their hands." ^ Mr. Madi- 
son opposed this motion, " insisting that the Western States neither would 
nor ought to submit to a union which degraded them from an equal rank 
with the other States." Mr. Mason followed him, saying, " If it were pos- 
sible by just means to prevent emigrations to the Western Country, it might 
be good policy. But go the people will as they find it for their interest, and 
the best policy is to treat them with that equality which will make them 
friends not enemies." But Roger Sherman of Connecticut had already put 
the matter on unassailable grounds, saying that he " thought there was no 
probability that the number of future States would exceed that of the Exist- 
ing States. If the event should ever happen, it was too remote to be taken 
into consideration at this time. Besides We are providing for our posterity, 
for our children & our grand Children who would be as likely to be citizens 
of new Western States, as of the old States. On this consideration alone, 
we ought to make no such discrimination as was proposed by the motion." ^ 
Because of the opposition of men of the school of Gouverneur Morris, 
the principle of equality was not consecrated in the Constitution, but as 
equality is the very life and breath of American institutions it has obtained 
in practice, and each new State is admitted to the Union upon a footing of 
equality. For, as stated by Mr. Justice Lurton in delivering the opinion of 
the Supreme Court in the case of Coyle v. Smith (221 U. S., 559, 580), 
decided in 1911 : 

The constitutional equality of the States is essential to the harmonious 
operation of the scheme upon which the Republic was organized. When that 
equality disappears we may remain a free people, but the Union will not be 
the Union of the Constitution.^ 

The rights of the existing States, however, were safeguarded against 
partition or involuntary union with other States, which provisions inured to 
the benefit of all States. They are thus expressed in the third section of 
Article IV of the perfected Constitution: 

No new State shall be formed or erected within the Jurisdiction of any 
other State ; nor any State be formed by the Junction of two or more States 
or Parts of States, without the Consent of the Legislatures of the States 
concerned as well as of the Congress. 

It will be observed that the consent of Congress is required even when 
the States themselves might be willing, inasmuch as the question is one con- 
cerning the Union as a whole as well as of the States thought to be more 
closely involved. 

* Documentary History, Vol. iii, pp. 642-3. Session of August 29th. 

' Ibid., pp. 332-3. Session of July 14th. 

"J. B. Scott, Judicial Settlement of Controversies between States, Vol. i, p. 64. 



THE ADMISSION OF NEW STATES 295 

A further passage of this section may be quoted as showing how easily . 
despotism in others is the exercise of just rights in ourselves, for in the next 
succeeding clause it is provided that " the Congress shall have Power to dis- 
pose of and make all needful Rules and Regulations respecting the Territory Government 
or other Property belonging to the United States." And this clause has Territories 
been interpreted by the Supreme Cotfrt to vest in the Congress, as to it shall 
seem expedient, the tmquestioned and indeed unquestionable right to govern 
the territories of the United States until their admission to the Union. As 
a matter of fact Congress has exercised this power in such a way that the 
governors of the territories, the judges of their courts created by act of 
Congress, are appointed by the President by and with the consent of the 
Senate, and that the acts of their legislatures, created by the Congress and 
invested with such powers as the Congress deems advisable, may be set 
aside by the Congress of the United States. A delegate from each territory, 
elected by the qualified voters thereof, does indeed sit in the House of Repre- 
sentatives, but he may not vote although he may participate in debate. 

As pronounced a friend and advocate of the more perfect Union under 
the Constitution as Chancellor Kent feared that the evils of the old system 
would reappear in the new, saying in his Commentaries on American Law, 
first published in 1826 : 

If, therefore, the government of the United States should carry into 
execution the project of colonizing the great valley of the Oregan to the west 
of the Rocky Mountains, it would afford a subject of grave consideration 
what would be the future civil and political destiny of that country. It 
would be a long time before it would be populous enough to be created into 
one or more independent states; and, in the meantime, upon the doctrine 
taught by the acts of congress, and even by the judicial decisions of the 
Supreme Court, the colonists would be in a state of the most complete sub- 
ordination, and as dependent upon the will of congress as the people of this 
country would have been upon the king and parliament of Great Britain, if 
they could have sustained their claim to bind us in all cases whatsoever. 
Such a state of absolute sovereignty on the one hand, and of absolute de- 
pendence on the other, is not at all congenial with the free and independent 
spirit of our native institutions ; and the establishment of distant territorial 
governments, ruled according to will and pleasure, would have a very natural 
tendency, as all proconsular governments have had, to abuse and oppression.'- 

But the Congress has exercised its powers in wisdom, and the territories 
have been rapidly, indeed some think too rapidly, admitted to statehood. In 
Milton's conception, Presbyterian might indeed be " old priest writ large," 
but the Congress of the United States is not another form or name for that 
imperious Parliament whose powers it exercises in the New World. 

'James Kent, Commentaries, 1826, Vol. I, pp. 360-1. 



XV 

AMENDMENTS AND RATIFICATIONS 

It must be recollected that the Constitution was proposed to the people of the States 
as a whole, and unanimously adopted as a whole, it being a part of the Constitution that 
not less than ^ should be competent to make any alteration in what had been unanimously 
agreed to. So great is the caution on this point, that in two cases where peculiar interests 
were at stake a majority even of ^ are distrusted and a unanimity required to make 
any change affecting those cases. 

When the Constitution was adopted as a whole, it is certain that there are many of 
its parts which if proposed by themselves would have been promptly rejected. It is far 
from impossible that every part of a whole would be rejected by a majority and yet the 
whole be unanimously accepted. Constitutions will rarely, probably never be formed 
without mutual concessions, without articles conditioned on & balancing each other. Is 
there a Constitution of a single State out of the 24 that would bear the experiment of 
having its component parts submitted to the people separately, and decided on according 
to their insulated merits. (Extract from letter of James Madison to Robert Y. Hayne, 
United States Senator from South Carolina, dated April s/4, 1830, Gaillard Hunt, Editor, 
The Writings of James Madison, Vol. IX, 1910, p. 392, note.) 

But it is universally understood, it is a part of the history of the day, that the great 
revolution which established the constitution of the United States, was not effected 
without immense opposition. Serious fears were extensively entertained, that those powers 
which the patriot statesmen, who then watched over the interests of our country, deemed 
essential to union, and to the attainment of those invaluable objects for which union was 
sought, might be exercised in a manner dangerous to liberty. In almost every convention 
by which the constitution was adopted, amendments to guard against the abuse of power 
were recommended. These amendments demanded security against the apprehended 
encroachments of the general government — not against those of the local governments. 
In compliance with a sentiment thus generally expressed, to quiet fears thus extensively 
entertained, amendments were proposed by the required majority in congress, and adopted 
by the states. These amendments contain no expression indicating an intention to apply 
them to the state governments. This court cannot so apply them. (Chief Justice Marshall 
in Barron v. The Mayor and Citv of Baltimore, 7 Peters, 243, 250, decided in 1833.) 

The prohibition alluded to as contained in the amendments to the constitution, as 
well as others with which it is associated in those articles, were not designed as limits 
upon the State governments in reference to their own citizens. They are exclusively restric- 
tions upon federal power, intended to prevent interference with the rights of the States, 
and of their citizens. Such has been the interpretation given to those amendments by 
this court, in the case of Barron v. The Mayor and City Council of Baltimore, 7 Pet., 243; 
and such indeed is the only rational and intelligible interpretation which those amendments 
can bear, since it is neither probable nor credible that the States should have anxiously 
insisted to ingraft upon the federal constitution restrictions upon their own authority, — 
restrictions which some of the States regarded as the sine qua non of its adoption by them. 
(Mr. Justice Daniel in Fox v. The State of Ohio, 5 Howard, 410, 434-435, decided in 1847.) 

" This term United States, designates the whole American empire." It is the nam^ 
given to our great republic, composed of states and territories; 5 Wh. 514; "con- 
stituent parts of one great empire:" 6 Wh. 414; "who have formed a confederated 
government;" 12 Wh. 334; 2 Pet. 590, 1; by the act of the people of the "great empire," 
the " great republic," the " American empire," the United States. " The people of 
America," "the American people," "the people of the United States," are but terms and 
names, to designate the grantor of the thing, which was thus formed, by the people,^ of 
the constituent parts ; the thing, the power which formed it, by a thing, this constitution, 
established by the ratifications of nine things, conventions of nine states, by the people 

296 



AMENDMENTS AND RATIFICATIONS 297 

of each as a state. (Mr. Justice Baldwin, A General View of the Origin and Nature of 
the Constitution and Government of the United States, 1837, p. 14.) 

Twelve states met in convention by their separate delegations, to digest, reduce to 
form, and submit to a congress of the states, a frame of government for such of the 
states, as should, in conventions of the state, ratify it as their act: the frame was made, 
it proposed the institution of a government between the states who should adopt it, nine 
of whom were declared competent. These separate conventions were not to be like the 
general convention, composed of members appointed by state legislatures, with power 
only to propose an act to them as their constituents, and through them to the people of 
the state. To the proposed act was prefaced a declaration, that it was to be the act of 
the people, and a constitution for a government, such as it delineated. So it was sub- 
mitted to Congress, and by them to each state legislature, who called conventions of 
delegates elected by tlie people of each slate; nine of these conventions separately ratified the 
act, in the name of the people who had authorized it; and thus the proposed frame of 
government was established as a constitution for those nine states, who then composed 
"The United States of America;" and between themselves only. The declaration, in its 
front, therefore, necessarily refers, not to the time when it was proposed, but when it was 
ordained and established, by " the ratification of the conventions of nine states," as this 
was done by the people of those states; so the act declares, " We the people of the United 
States, (which have ratified) do ordain (by our separate ratifications) this constitution," 
for (the states, and between the states so ratifying the same, who are thereby) "The 
United States of America." (Mr. Justice Baldwin, A General View of the Origin and 
Nature of the Constitution and Government of the United States, 1837, p. 18.) 

There never has been, or can be any difference of opinion as to the meaning of the 
ordaining parts of the constitution in the terms, "the people of the several states;" "the 
several states which may be included in this union;" "each state;" for they do not admit 
of two meanings. They refer to those states which, having ratified the constitution, are 
each a constituent part of the United States, composing, by their union, the United States 
of America; and to the people of each state, as the people of these United States. When 
terms are so definite in the body of an instrument, and one less definite is used in the 
preamble, which can be made equally definite by reference, the established maxim applies — 
"id cerium est quod cerium reddi potest." (Mr. Justice Baldwin, A General Fiew 
of the Origin and Nature of the Constitution and Government of the United States, 1837, 
p. 30.) 

I have only to add one other consideration, to illustrate the meaning of the preamble. 
All agree that the constitution was to be established by the people of the United States, 
whenever the conventions of nine states should ratify it; all must agree, that when it was 
proposed for adoption in 1787, it could not be foreseen which of the states would so ratify 
it; the states therefore could not be named till their separate ratifications were given. It 
provided for the admission of new states, but no one could divine their names or locality; 
states could be " formed by the junction of two or more states," but none could say of 
which. The constitution was intended for posterity, through all time; and for "the land," 
the whole territory, and all the states, old and new; as one law, speaking in the same 
words, and with the same intention, at the time it was proposed, and at each period when 
any state ratified it, and thus became one of " the United States of America," by the act 
of the people of the states respectively. 

When the terms "we, the people," "of the United States," are thus applied, they seem 
to me not only appropriate to the instrument, but the only terms that would be so; it 
uses terms in all its parts, yet we find no definitions or explanations: it was not intended 
for a. code; and the term "people," was a mere designation of the power by which the 
constitution was made, as "the states" were designated by their separate ratifications. 
Hence it referred, in 1789, to eleven only, then to the old thirteen states, and now refers 
to the thirteen new states: and when others shall be admitted into the Union, it will refer 
to them as it did to the old, and now does to the new. "The people" "of the several 
states, which may be included within this Union," as the constituent power of the federal 
government. (Mr. Justice Baldwin, A General View of the Origin and Nature of the 
Constitution and Government of the United States, 1837, p. 97.) 

Each state still has two constitutions of government, one for state, the other for federal 
purposes ; both ordained by the same people, and in the same manner, in a convention of 
their representatives, elected by the electors of the states, for the special object, whereby in 
the simple, impressive, instructive, and strictly constitutional language of this Court, 



298 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

" The national and state systems are to be regarded as one whole." 6 Wh. 419. " The 
powers of government are divided between the government of the Union, and those of 
the states." "They are each sovereign, with respect to the objects committed to it; and 
neither sovereign, with respect to the objects committed to the other." 4 Wh. 410. {Mr. 
Justice Baldwin, A General View of the Origin and Nature of the Constitution and 
Government of the United States, 1837, p. 91.) 

Art. 7. " The ratifications of the conventions of nine states shall be sufficient for the 
establishment of this constitution, between the states so ratifying the same." 

It is then, by the separate action of the states, in conventions of nine states, (not of 
a convention of nine states) that the grant was made; the act of eight produced no result; 
but when the ninth acted, the great work was effected as between the nine. Until the 
other four so acted, they were no part of the United States; nor were the people of the 
non-ratifying states, any part of the people of the United States, who ordained and 
established it. 

That the term, conventions of states, meant conventions of delegates, elected by the 
people of the several states, for the express purpose of assenting or dissenting, to their 
adoption of the proposed constitution, is admitted by all; as also, that no general con- 
vention of the whole people was ever convened for any purpose : and that the members 
of the convention which framed it, met, and acted as states, consented to, and signed it 
for and in behalf of the states, whom they respectively represented, appears on its face. 
It was proposed to the people of each state separately, and was so ratified ; it existed 
only between those states, whose people had so accepted it. It would, therefore, most 
strangely contradict itself, throughout all its provisions, to so construe the preamble, as to 
make it a declaration, that it was ordained by any other power than that of the people 
of the several states, as distinct bodies politic, over whom no external power could be 
exerted, but by their own consent. 

These are not only the necessary conclusions, which flow from the plain language and 
definite provisions of the constitution itself, but their settled interpretation by this Court. 
" From these conventions the constitution derives its whole authority. The government 
proceeds directly from the people, and is ordained and established in the name of the 
people." 4 Wh. 403. 

If it is asked what people; the answer is at hand, "A convention of delegates chosen 
in each state, by the people thereof, assembled in their several states." lb. sup. {Mr. 
Justice Baldwin, A General View of the Origin and Nature of the Constitution and Gov- 
ernment of the United States, 1837, p. 35.) 



CHAPTER XV 



AMENDMENTS AND RATIFICATIONS 



The members of the Convention were too wise not to foresee that, how- 
ever perfect they might themselves consider their work, it would sufifer 
revision at other hands. They were indeed ostensibly engaged in revising 
one instrument of government, and while attempting to correct the obvious 
defects in the Articles of Confederation which experience had disclosed, they 
could not, nor did they attempt, to forecast events in such a way as to exclude 
the possibility of change in the fundamental charter of the Union. They 
wisely left the future to " posterity." Indeed they were so convinced of 
the necessity of revision that they facilitated it by rejecting the require- 
ment that it could only be brought about by the unanimous consent of the 
States. 

The thirteenth of Mr. Randolph's resolutions stated that " provision ought ^^nl'Vor 
to be made for the amendment of the Articles of Union whensoever it shall Amendment 
seem necessary, and that the assent of the National Legislature ought not 
to be required thereto." This was indefinite, and purposely so, inasmuch as 
the question was difficult in itself and depended upon the adoption of a satis- 
factory form of government by the States in Convention assembled. 

Without entering into details, it is sufficient to note in this connection 
that the unanimous consent required by the thirteenth of the Articles of Con- 
federation was rejected, as it had been found impracticable if not impossible 
to obtain the consent of each of the States to a modification of the Articles 
when, rightly or wrongly, the interest of any State was supposed to be un- 
favorably affected by the amendment; and it is not too much to say that the 
Articles of Confederation failed and were discarded largely because of the 
practical if not the theoretical lack of power of amendment. 

As in so many other parts of the Constitution, the fifth Article, which 
states the final views of the Convention on this subject, was the result of 
concession and compromise. Thus, the States themselves conceded that all 
might be bound by the decision of a lesser number, eventually fixed at three- 
fourths. But the parties which had stood for their interests and had secured 
their recognition were unwilling to lose the fruits of victory through amend- 
ment. For example, the States in which slavery existed and appeared to 
be profitable, or at least was the basis of their economic system, insisted that 
the slave trade, guaranteed by Article I, Section 9 of the Constitution, should 

299 



300 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Representation 
of Small States 
Not Subject to 



not be lost. Therefore, it was provided that " no Amendment which may 
be made prior to the Year One thousand eight hundred and eight shall in 
any manner affect the first and fourth Clauses in the Ninth Section of the 
first Article." Indeed, after the Constitution was a completed instrument, 
the right of the small States to equality was, in the session of September 15, 
1787, safeguarded for all time against amendment; for although the Con- 
stitution may be amended in every other particular, it may not, according 
to its terms, be legally amended in this respect. A motion was put to that 
effect by a delegate of one of the large States, and curiously enough by that 
very delegate who, in conference with the Virginian delegates before the 
opening of the Convention, had proposed to deprive the little States of 
equality. " M''. Gov"". Morris," to quote Mr. Madison's N'otes, " moved to 
annex a further proviso — * that no State, without its consent shall be de- 
prived of its equal suffrage in the Senate.' " And Mr. Madison, perhaps 
not without a smile, for he possessed a keen sense of humor, continued, 
" This motion being dictated by the circulating murmurs of the small States 
was agreed to without debate, no one opposing it, or on the question, saying 
no." ^ This provision appropriately forms the last and final clause of the 
fifth Article dealing with amendment. 

Admitting therefore that the Constitution was to be amended, that cer- 
tain interests were so important that they should not be affected, one for the 
period of twenty years, the other for all time, the question of amendment, 
accepted in principle, became a matter of detail. Extreme advocates of the 
rights of the States, such as Mr. Luther Martin of Maryland, would insist 
that no modification should be made in the instrument of government with- 
out the consent of all the States. The advocates of a consolidated govern- 
ment could not propose less than a majority. Neither of these views could 
prevail. The matter was plainly one for compromise, and a compromise was 
effected. 

It will be recalled that, in the matter of amendment, Mr. Randolph's reso- 
lution on the subject proposed " the assent of the national Legislature ought 
not to be required thereto," a proposal made, no doubt, because of the diffi- 
culty in getting Congress to move; but the Congress of the more perfect 
Union was to be different from the Congress of the Confederation. It was 
in any event a central authority, and it might appropriately be used as an 
agent for this purpose, provided, however, that it was only an agent, not 
a principal and that the States might take the initiative in the matter if they 
so desired. By concession and compromise, it therefore resulted that two- 
thirds of both houses or the legislatures of two-thirds of the several States 
were to propose amendments, but their ratification was in no event to depend 
* Documentary History of the Constitution, Vol. Ill, p. 758. 



AMENDMENTS AND RATIFICATIONS 301 

upon the Congress, whidi is after all only the agent of the States for cer- 
tain defined legislative purposes, but upon the States or their citizens, who are 
the source of power. 

— The amendments thus proposed were to be submitted by the Congress. 
Whether they were proposed by the Congress or by a convention called by 
the Congress upon the initiative of the States, the proposals themselves were 
to be " ratified by the Legislatures of three fourths of the several States, or 
by Conventions in three fourths thereof," as the one or the other mode of 
ratification may be proposed by the Congress. Whereupon the amendments 
thus approved are " valid to all Intents and Purposes, as Part of this Con- 
stitution." It will be observed that the ratification by the legislature or special 
convention of a State is regarded as of equal force and eflfect, whereas 
Article VII of the Constitution provides that " the Ratification of the Con- 
ventions of nine States, shall be sufficient for the Establishment of this Con- 
stitution between the States so ratifying the same." It is also to be noted 
that, in the letter of the President of the Convention transmitting on its be- 
half the Constitution to the Congress, it is " Resolved, That the preceding 
Constitution be laid before the United States in Congress assembled, and that 
it is the Opinion of this Convention, that it should afterwards be submitted 
to a Convention of Delegates, chosen in each State by the People thereof, 
under the Recommendation of its Legislature, for their Assent and Ratifica- 
tion; and that each Convention assenting to, and ratifying the Same, should 
give Notice thereof to the United States in Congress assembled." * 

The question may arise as to the difference of procedure in ratifying the 
Constitution and the amendments thereto, for the Constitution receives its 
validity only from the approval of conventions of the several States, whereas 
an amendment changing the Constitution is valid if made by the legislature 
or convention of the States. The question is not unimportant. The fifteenth 
of Mr. Randolph's resolutions provided " that the amendments which shall 
be ofi^ered to the Confederation, by the Convention ought at a proper time, 
or times, after the approbation of Congress to be submitted to an assembly 
or assemblies of Representatives, recommended by the several Legislatures 
to be expressly chosen by the people, to consider & decide thereon." The 
slightest familiarity with the proceedings of the Convention shows that the 
advocates of the more perfect Union regarded the ratification of the Con- 
stitution by conventions specially called within the States instead of the legis- 
latures therein existing as both fundamental and essential to its success. To 
extreme advocates of the rights of the State, such as Mr. Luther Martin, 
the ratification by the State was sufficient, as the State was sovereign and it 
was immaterial whether it be by special assembly or by the legislature of the 
' Ibid.. Yol ii, p. 20. 



302 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

State, as this was an internal matter. To the delegates of the small States 
ratification by the legislatures seemed adequate, inasmuch as the legislature 
represented the State, which was thus necessarily bound by its act. And it 
must be confessed that this view is reasonable, and that the difFerence seems 
to be one of form, not of substance, unless we look below the surface. If 
tf^£o*ub?e "^^ *^° ^^ ^^^ ^^^^ ^^^ whole theory of the Constitution depends upon this 

constitu- conception, for the purpose of Mr. Madison, who may be considered as the 

exponent of this view, was not merely to have a constitution for the more 
perfect Union, but to have this constitution become, by means of its rati- 
fication by the people of each of the States, the constitution of the State as if 
it had originated within the State. In this event the constitution would be 
the constitution of the State and similar to an ordinary State constitution 
in that it referred to matters affecting the State and therefore properly deter- 
mined by it. It differed, however, from the ordinary constitution in that 
it also affected the other States. It was therefore devised by delegates of 
the States and ratified by conventions of their people. In this way it be- 
came the constitution of all for general purposes, or for matters in common. 
The constitution framed in first instance and adopted by the people of the 
State deals with local or particular interests and not with interests held by 
the States in common. It begins and ends in the State in the sense that its 
provisions do not affect the States in general. It is confined to the State 
and is accordingly considered in the narrower sense the constitution of the 
State. In either case ratified by a Convention of the people of the State 
called for that purpose, it is the constitution of that State, just as the instru- 
ment of government, whether originating in the State, framed in convention 
and ratified by the voters of the State, is the constitution of that State. The 
purpose of the Convention was that each State should have two constitutions, 
one for general purposes, dealing with their interests in common, framed by 
their delegates in the Federal Convention submitted to and ratified by the 
Conventions of the States to be bound; the other for local purposes, con- 
fined to or not extending beyond the State, framed by its delegates in legis- 
lature or in convention and ratified by the people of the State according to 
their pleasure. 

But this was not enough, for if the general and the special constitu- 
tion were each ratified by the people of the States, each would have an 
equal validity and the later expression of the popular will would prevail. 
That is to say, if the State constitution were adopted subsequent to the rati- 
fication of the Federal Constitution the provisions of the State constitution 
would necessarily govern. Therefore, in order to prevent this, and by one 
act to make the Federal Constitution the supreme law of the State as well 
as the instrument of government of the Union, and irrevocable and not 



AMENDMENTS AND RATIFICATIONS 303 

subject to amendment except by the vote of three-fourths of the States, it 
was provided in the second clause of Article VI that " This Constitution, 
and the Laws of the United States which shall be made in Pursuance thereof; 
and all Treaties made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and the Judges in every 
State shall be bound thereby, any Thing in the Constitution or the Laws of 
any State to the Contrary notwithstanding." 

The meaning of this is clear: the Constitution, the acts of Congress 
passed in accordance with its terms and the treaties of the United States 
are to be " the supreme law of the land," an expression ultimately substituted 
by the Committee on Style and adopted by the Convention September 12, 
1787, for " the supreme law of the several States, and of their citizens and 
inhabitants " (Article 8 of the first draft of the Constitution, submitted on 
August 6th). 

There was to be one constitution of each State for general purposes. 
There could be as many State constitutions as the people thereof were 
minded to make, but the Constitution adopted by the delegates of the States, 
when ratified by the people of the State, was to be supreme, " any Thing 
in the Constitution or Laws of any State to the Contrary notwithstanding." ^ 

It will be observed that the judges of each of the States are to be bound 
by the Constitution, the acts of Congress made in pursuance thereof and 
the treaties of the United States. This was naturally and properly so, be- 
cause the Constitution of the United States was also the law of the land, 
that is to say, of each State. The act of Congress in pursuance of its terms 
was a law of the State. A treaty of the United States, being a law of the 
United States, was necessarily a law of each State. The judicial power of 
the State would necessarily extend to the provisions of the Constitution, 
acts of Congress and treaties of the United States. There would, however, 

' The question as to what constitutes the government of a community seeking admission 
to the Union is a political rather than a judicial one, and the power of recognizing a State 
government was left in the hands of Congress. This was made clear in the case of Luther 
V. Borden (7 Howard, 1, 42), decided in 1849, in which the constitutionality of the accepted 
form of government in Rhode Island was disputed. Mr. Chief Justice Taney, in deliver- 
ing the opinion of the court, said: 

It rests with Congress to decide what government is the established one in a 
State. For as the United States guarantee to each State a republican government. Con- 
gress must necessarily decide what government is established in the State before it can 
determine whether it is republican or not. 

A similar issue arose in the case of Minor v. Happersett (21 Wallace, 162), decided in 
1874, and was settled in the following language: 

The guarantee [for a republican form of government] necessarily implies a duty 
on the part of the States themselves to provide such a government. All 'the States 
had governments when the Constitution was adopted. In all, the people participated 
to some extent, through their representatives elected in the manner specially provided. 
These governments the Constitution did not change. They were accepted precisely as 
they were, and it is, therefore, to be presumed that they were such as it was the duty 
of the States to provide. Thus we have unmistakable evidence of what was republican 
in form, within the meaning of that term, as employed in the Constitution. 



304 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

be a difference in the action of the Federal and of the State courts. An error 
of the State court in the interpretation of the Federal law would be cor- 
rected on appeal by the Supreme Court of the United States; whereas the 
constructions put upon the State Constitution and the laws of the State 
would be followed by the Supreme Court in so far as they were not incon- 
sistent with the Federal Constitution, with acts of Congress made in pur- 
suance thereof, or with treaties of the United States. In matters of general 
as distinguished from local jurisprudence, the Federal Court would be free 
to decide for itself, yet would be inclined to accept the decision of the State 
Court. 

That there might be no doubt as to the supremacy of the Federal Con- 
stitution, the acts of Congress consistent with its terms and treaties of the 
United States, it was further and wisely provided that all officers of the States 
as well as of the United States should bind their consciences by oath or 
affirmation to support the Federal Constitution; thus making it not merely 
supreme on paper and of general application, but supreme in fact in the 
special and concrete case. Thus the clause of Article VI immediately follow- 
ing the one last quoted proceeds : 

The Senators and Representatives before mentioned, and the Members 
of the several State Legislatures, and all executive and judicial Officers, both 
of the United States and of the several States, shall be bound by Oath or 
Affirmation, to support this Constitution. 

Finally, in this connection, it is to be noted that the Federal Constitution 
was, by these various provisions, made the supreme and fundamental law of 
each State of the Union and was adopted in its entirety b}'- each of the States 
J^^gj. ratifying it. Article V, concerning amendments, was therefore necessarily 

to Amend adopted as an integral part of the Constitution, which, in providing for its 

amendment, made its ratification depend not merely upon the sovereign 
pleasure of any one State but upon the approval of three-fourths of the States 
of the Union. It was therefore beyond the power of any one State to change 
an iota of its fundamental constitution, except in conjunction with three- 
fourths of the States. An attempt to do so would be illegal and could only 
be looked upon as an attempt to amend this constitution in a method contrary 
to its provisions. It could not be done according to the law of the land. It 
could only be done by revolution. It was, after the formal ratification of the 
Constitution by conventions of the peoples within the State, immaterial 
whether the amendments were made by legislature or convention within the 
States, inasmuch as the supremacy of the Constitution had been established, 
and inasmuch as it could not be disestablished except by the votes of three- 
fourths of the States, in which event the will of three-fourths of the States, 



AMENDMENTS AND RATIFICATIONS 305 

whether expressed in legislature or in convention, would prevail in fact and 
should prevail in law. 

In a letter addressed to Edmund Randolph, under date of April 8, 1787, Ratification 
Mr. Madison outlined the principles which he thought should be contained 
in the new Federal pact, and expressed the opinion that " to give the new 
system its proper energy, it will be desirable to have it ratified by the authority 
of the people, and not merely by that of the Legislatures." ^ This provision, 
therefore, appeared in the fifteenth of Mr. Randolph's resolutions, and it was 
debated at large and in detail in the Convention. In the session of June 5th 
it appears to have first been taken up, on which occasion Mr. Sherman 
" thought such a popular ratification unnecessary : the articles of Confedera- 
tion providing for changes and alterations with the assent of Cong^ and 
ratification of State Legislatures." Naturally, Mr. Madison, as the author 
of the clause, thought " this provision essential," saying in reply to Mr. Sher- 
man that : 

The articles of Confed". themselves were defective in this respect, resting 
in many of the States on the Legislative sanction only. Hence in conflicts 
between acts of the States, and of Cong^. especially where the former are of 
posterior date, and the decision is to be made by State Tribunals, an uncer- 
tainty must necessarily prevail, or rather perhaps a certain decision in favor 
of the State authority. He suggested also that as far as the articles of Union 
were to be considered as a Treaty only of a particular sort, among the Gov- 
ernments of Independent States, the doctrine might be set up that a breach 
of any one article, by any of the parties, absolved the other parties from 
the whole obligation. For these reasons as well as others he thought it indis- 
pensable that the new Constitution should be ratified in the most unex- 
ceptionable form, and by the supreme authority of the people themselves.^ 

After an exchange of views the question was postponed, but was passed 
on the 12th, Massachusetts, Pennsylvania, Virginia, North Carolina, South 
Carolina and Georgia voting for, Connecticut, New York and New Jersey 
against, and the delegations of Delaware and Maryland divided. On July 
23d, three days before Mr. Randolph's resolutions as amended were referred 
to the Committee of Detail to report a draft of a Constitution, the question Discussion 
again came before the Convention and was very carefully and elaborately Mode of 
considered. Mr. Ellsworth of Connecticut moved that the Constitution be 
referred to the legislatures of the States for ratification and was appropriately 
seconded by Mr. Patterson of New Jersey. In the course of the debate 
Messrs. Mason and Madison argued strongly for the submission of the Con- 
stitution to conventions within the States; Mr. Ellsworth stood out for 

' The Writings of lames Madison, Hunt ed., Vol. II, p. 340. 
* Documentary History, Vol. Ill, pp. 65-6. 



306 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

submission to the Legislatures, and the reasons pro and con were admirably 
Stated. Thus, 

Col. Mason considered a reference of the plan to the authority of the 
people as one of the most important and essential of the Resolutions. The 
Legislatures have no power to ratify it. They are the mere creatures of the 
State Constitutions, and cannot be greater than their creators. And he knew 
of no power in any of the Constitutions, he knew there was no power in 
some of them, that could be competent to this object. Whither then must we 
resort? To the people with whom all power remains that has not been 
given up in the Constitutions derived from them. It was of great moment 
he observed that this doctrine should be cherished as the basis of free Gov- 
ernment. Another strong reason was that admitting the Legislatures to 
have a competent authority, it would be wrong to refer the plan to them, 
because succeeding Legislatures having equal authority could undo the acts 
of their predecessors ; and the National Gov*, would stand in each State on 
the weak and tottering foundation of an Act of Assembly. There was a 
remaining consideration of some weight. In some of the States the Gov*^. 
were not derived from the clear & undisputed authority of the people. 
This was the case in Virginia. Some of the best & wisest citizens considered 
the Constitution as established by an assumed authority. A National Con- 
stitution derived from such a source would be exposed to the severest 
criticisms.^ 

Mr. Madison, as sponsor for the proposition, added the weight of his 
authority to its adoption, saying, in his own summary of his views, that he 

thought it clear that the Legislatures were incompetent to the proposed 
changes. These changes would make essential inroads on the State Con- 
stitutions, and it would be a novel & dangerous doctrine that a Legislature 
could change the constitution under which it held its existence. There 
might indeed be some Constitutions within the Union, which had given a 
power to the Legislature to concur in alterations of the federal Compact. 
But there were certainly some which had not ; and in the case of these, a 
ratification must of necessity be obtained from the people. He considered 
the difference between a system founded on the Legislatures only, and one 
founded on the people, to be the true difference between a league or treaty, 
and a Constitution. The former in point of moral obligation might be as in- 
violable as the later. In point of political operation, there were two important 
distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre- 
existing law, might be respected by the Judges as a law, though an unwise & 
perfidious one. A law violating a constitution established by the people them- 
selves, would be considered by the Judges as null & void. 2. The doctrine 
laid down by the law of Nations in the case of treaties is that a breach of 
any one article by any of the parties, frees the other parties from their 
engagements. In case of a union of people under one Constitution, the 
nature of the pact has always been understood to exclude such an interpre- 
tation. Comparing the two modes in point of expediency he thought all the 
considerations which recommended this Convention in preference to Con- 
gress for proposing the reform were in favor of State Conventions in prefer- 
ence to the Legislatures for examining and adopting it.^ 

^Documentary History, Vol. iii, p. 405. 
* Ibid., Vol. iii, pp. 410-11. 



AMENDMENTS AND RATIFICATIONS 307 

In the session of August 31, Mr. Madison recurred to this subject in con- 
nection with the difficulty which some of the States, particularly Maryland, 
alleged they would experience because the State constitutions did not provide 
for amendment and the officials of the States were bound by oath to obey the 
provisions thereof. Mr. Madison, according to his own report, 

considered it best to require Conventions ; Among other reasons, for this, that 
the powers given to the Gen^ Gov^ being taken from the State Gov*^ the 
Legislatures would be more disinclined than conventions composed in part 
at least of other men ; and if disinclined, they could devise modes apparently 
promoting, but really thwarting the ratification. . . . The people were in 
fact, the fountain of all power, and by resorting to them, all difficulties were 
got over. They could alter constitutions as they pleased. It was a principle 
in the Bills of rights, that first principles might be resorted to.^ 

In the session of July 23d, Mr. Ellsworth paid special attention to Mr. 
Mason's views, saying, in support of his motion that the Constitution be 
referred to the legislatures of the States for ratication: 

If there be any Legislatures who should find themselves incompetent to 
the ratification, he should be content to let them advise with their constituents 
and pursue such a mode as w"^. be competent. He thought more was to be 
expected from the Legislatures than from the people. ... It was said by 
Col. Mason 1. that the Legislatures have no authority in this case. 2. that 
their successors having equal authority could rescind their acts. As to the 2<i. 
point he could not admit it to be well founded. An act to which the States by 
their Legislatures, make themselves parties, becomes a compact from which 
no one of the parties can recede of itself. As to the P'. point, he observed 
that a new sett of ideas seemed to have crept in since the articles of Con- 
federation were established. Conventions of the people, or with power 
derived expressly from the people, were not then thought of. The Legis- 
latures were considered as competent. Their ratification has been asquiesced 
in without complaint. - 

Mr. Ellsworth was correct in stating that " a new sett of ideas seemed 
to have crept in since the articles of Confederation were established," and 
the ratification by conventions in the States naturally sprang out of the new 
ideas by virtue of which the people were the source of all power, that there- 
fore constitutions should not be conceded by a king, monarch, or legislature 
to the people, but that all power, emanating from the people, was, as far as 
they considered it safe or necessary, vested in branches of government 
created by them and to be exercised by officials responsible to them. 

The new set of ideas to which Mr. Ellsworth referred are thus stated 

' Ibid., p. 656. 
• Ibid., p. 408. 



308 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

in the Virginia bill of rights of June 12, 1776, drafted by Mr. Mason himself : 

|overeign That all power is vested in, and consequently derived from, the people; 

that magistrates are their trustees and servants, and at all times amenable to 
them. 

That government is, or ought to be, instituted for the common benefit, 
protection, and security of the people, nation, or community ; . . . and that, 
when any government shall be found inadequate or contrary to these pur- 
poses, a majority of the community hath an indubitable, inalienable, and 
indefeasible right to reform, alter, or abolish it, in such manner as shall be 
judged most conducive to the public weal.^ 

And the new set of ideas v^as thus stated in the Declaration of Independence 
adopted by the Congress of the United States on July 4, 1776: 

We hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain unalienable Rights, that 
among these are Life, Liberty and the pursuit of Happiness. That to secure 
these rights, Governments are instituted among Men, deriving their just 
powers from the consent of the governed. That whenever any Form of 
Government becomes destructive of these ends, it is the Right of the People 
to alter or to abolish it, and to institute new Government, laying its founda- 
tion on such principles and organizing its powers in such form, as to them 
shall seem most likely to effect their Safety and Happiness. 

In accordance with these ideas the Constitution, to bind the people, should 
be ratified by the people as the source of power, not by the legislature as the 
agent thereof. This was the view of the Convention, expressed immediately 
after Mr. Madison's remarks of July 23d, New Hampshire, Massachusetts, 
Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia vot- 
ing against Mr. Ellsworth's motion to refer the Constitution to the legis- 
latures of the States, and Connecticut, Delaware and Maryland voting for 
the motion. New York was not represented, and New Jersey took no part in 
the vote. 

The letter of the President of the Convention transmitting the Consti- 
tution with its recommendation that it should be submitted for ratification 
to conventions of the States specially called for this purpose was received by 
the Congress; and, on September 28, 1787, it was " Resolved Unanimously 
that the said Report with the resolutions and letter accompanying the same 
be transmitted to the several legislatures in Order to be submitted to a 
convention of Delegates chosen in each state by the people thereof in con- 
formity to the resolves of the Convention made and provided in that case." ^ 
This was done, and in the course of that and the ensuing year the Constitu- 

1 Thorpe, Charters and Constitutions, Vol. 7, p. 3813; Poore, pp. 1908-9. 
'Documentary History, Vol. ii, p. 22. 



AMENDMENTS AND RATIFICATIONS 309 

tion was ratified by conventions held in the different States. There were two 
exceptions: North CaroHna, which failed to ratify it at this time, although it 
did so on November 21, 1789, after the Constitution had gone into effect 
and the government thereunder organized; Rhode Island, which was not 
represented in the Convention but which, on May 29, 1790, adopted the 
Constitution, or " adhered to it " as we should say in international parlance. 

Some of the States ratified the Constitution unanimously, without diffi- Spirit of 
culty and without the suggestion of amendments. Other States ratified it Ratifications 
by a close vote, with great difficulty, and in the belief that certain amend- 
ments to the Constitution wtTuld be proposed and submitted to the States in 
accordance with the provisions of Article V thereof relating to amendments. 
It is to be observed, hov/ever, that the Constitution was in every case 
accepted in its entirety; that it was absolutely, not conditionally, ratified, 
although at one time its advocates were so hard pressed as to consider this 
proposition. Colonel Hamilton, with the New York Convention on his 
hands, consulted Mr. Madison, with the Virginian Convention just off his 
hands. The latter ended whatever wavering the Colonel may have had by 
stating that a conditional ratification would be no ratification at all; but 
a rejection. Mr. Madison's exact language was: 

My opinion is that a reservation of a right to withdraw, if amendments 
be not decided on under the form of the Constitution within a certain time, 
is a conditional ratification ; that it does not make N. York a member of 
the New Union, and consequently that that she could not be received on that 
plan.'^ 

It is important to bear this statement in mind, inasmuch as it shows 
that, although desirous of having New York become a member of the more 
perfect Union, and although Mr. Madison was in a frame of mind to make 
concessions, as his attitude in the international conference and in the State 
convention abundantly showed, he nevertheless felt that a State should 
decide on the threshold whether it should or should not enter the Union, 
and that, if it decided to enter and actually did enter the Union, it could 
not withdraw. Mr. Madison's language is important for the further reason 
that, as the Constitution derives its validity solely from its ratification by 
the States, it was essential that it be ratified by them in its entirety and 
unconditionally in order to be susceptible of a universal interpretation and 
of a universal application. 

Delaware, the smallest of the States represented in the Convention, was 
the first to act in favor of the Constitution, and its action was unanimous. 
New Jersey was the third in point of time, and its action was unanimous, 

^Ibid., vol. iv, p. 803. 



310 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

which showed that the small States were satisfied with the compromise by- 
virtue whereof their equality was maintained and safeguarded. The second 
State to ratify was the Comrnonwealth of Pennsylvania. It is to be noted 
however that while the Constitution was carried, there was a strong minority 
opposed to it. The variety of amendments suggested as reasonable by and 
acceptable to this minority appears to have won favor not only with the 
opponents of the Constitution in other States but are said to have been the 
basis of the amendments proposed by Mr. Madison on June 6, 1789, in the 
first session of the first Congress of the United States held under the Con- 
stitution. 

Delaware ratified December 7, 1787; Pennsylvania, December 12, 1787; 
New Jersey, December 18, 1787; Georgia, January 2, 1788; and Connecticut, 
January 9, 1788, without amendments. As previously stated, the action of 
Delaware and New Jersey was unanimous. In Pennsylvania the friends of 
the Constitution had a comfortable majority, and a still larger majority in 
Connecticut. 

One great State had declared itself. Massachusetts, the second of the 
great States, adopted the Constitution February 7, 1788, but only after 
a hard fought contest and the adoption of amendments. The adoption by 
this commonwealth grew out of a faith and confidence that amendments 
would be made to the Constitution and that the particular amendments 
which the Massachusetts Convention recommended would be laid before 
the Congress. Indeed its Senators and Representatives were instructed 
so to do, in accordance with the provision of the Constitution relating 
to amendments. This method of action seems to have satisfied the 
scruples of Mr. John Hancock, President of the Convention, and known 
to be not overfavorable to the Constitution. He had been President of the 
Continental Congress ; and the large, bold hand in which he signed his name 
to the Declaration of Independence keeps his memory green among his 
countrymen. He was then in private life, with an eye, it is said, to the 
governorship of his State. Some ill-natured persons, enemies of the great 
man, thought that he aspired to the presidency, in the event that Virginia 
did not enter the more perfect Union. The method also satisfied Mr. 
Samuel Adams, the great Revolutionary leader and advocate of democracy, 
who was at first opposed to the Constitution, but who was won over to 
its support by the recommendation of amendments. The action of Massa- 
chusetts was important not merely because it was then one of the three great 
States, without whose support the Constitution could not well be put into 
effect, but because it provided the means of overcoming- opposition in the 
other States, especially in the then third great State of Virginia, and in 
New York. The method of recommendations was indeed the bridge that 



AMENDMENTS AND RATIFICATIONS 311 

carried the doubting Thomases and in some instances the opponents across 
to the other side. It is worthy of note that after the action of Massachusetts 
only one of the remaining States ratified without suggesting amendments. 
It is appropriate to add that the following letter from General Wash- 
ington, published in Virginia, in Pennsylvania and in a Massachusetts paper 
during the session of the Convention of that State, had a great effect upon 
the good people thereof and inclined them to conciliation, by showing them 
how to realize the improvements to the Constitution which they had in view 
and in strict accordance with its express provisions concerning amendment: 

And clear I am, if another Foederal Convention is attempted, the 
sentiments of the members will be more discordant. . . . I am fully per- 
suaded . . . that it [the Constitution] or disunion is before us. If the 
first is our choice, ... a constitutional door is opened for amendments, 
and may be adopted in a peaceable manner without tumult or disorder.^ 

Maryland ratified without suggesting amendments April 28, 1788; South 
Carolina on May 23, 1788, and in view of the action subsequently taken by 
that State the material portion of its act of ratification is quoted : 

And whereas it is essential to the preservation of the rights reserved to 
the several states, and the freedom of the people, under the operations of 
a general government, that the right of prescribing the manner, time, and 
pkces, of holding the elections to the federal legislature, should be forever 
inseparably annexed to the sovereignty of the several states, — This Con- 
vention doth declare, that the same ought to remain, to all posterity, a per- 
petual and fundamental right in the local, exclusive of the interference 
of the general government, except in cases where the legislatures of the 
states shall refuse or neglect to perform and fulfil the same, according to 
the tenor of the said Constitution. 

This Convention doth also declare, that no section or paragraph of the 
said Constitution warrants a construction that the states do not retain 
every power not expressly relinquished by them, and vested in the general 
government of the Union. 

Resolved, That the general government of the United States ought never 
to impose direct taxes, but where the moneys arising from the duties, 
imports, and excise, are insufficient for the public exigencies, nor then until 
Congress shall have made a requisition upon the states to assess, levy, and 
pay, their respective proportions of such requisitions ; and in case any 
state shall neglect or refuse to pay its proportion, pursuant to such requisi- 
tion, then Congress may assess and levy such state's proportion, together 
with interest thereon, at the rate of six per centum per annum, from the 
time of payment prescribed by such requisition. 

Resolved, That the third section of the sixth article ought to be amended, 
by inserting the word " other " between the words " no " and " religious." 

^Documentary History, vol. iv, pp. 406-7. 



Difficulties of 
Ratification 



312 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

Resolved, That it be a standing instruction to all such delegates as may 
hereafter be elected to represent this state in the general government, to 
exert their utmost abilities and influence to effect an alteration of the Con- 
stitution, conformably to the aforegoing resolutions.^ 

South Carolina was the eighth of the States to ratify, but the Constitu- 
tion made the ratification of nine a prerequisite to its going into effect. With 
the ratification of New Hampshire on June 21, 1788, the people of nine 
States had pledged their faith to the Constitution, and it had become the 
government of each of the nine and of the Union composed of the nine. 
The influence of Massachusetts, to which New Hampshire belonged for a 
long time, was very marked upon that State during the colonial period, and 
the influence of Massachusetts did not cease with the Revolution, as the 
adoption by New Hampshire of the State Constitution and of the Consti- 
tution of the United States amply disclosed. When the Convention met in 
New Hampshire in February, 1788, the opponents of adoption were in a 
slight majority. The friends of the new government, however, were able 
to adjourn until June, by which time the members were more favorably dis- 
posed, so that, after four days' debate, the Constitution was ratified by a 
vote of 57 to 47, with a series of amendments, as in the case of 
Massachusetts. 

The action of New Hampshire inspired the supporters of the Constitution 
with confidence as well as hope, as it would be less difficult for the States 
in doubt as to the Constitution to join the more perfect Union when formed 
than to refuse to take part in its formation. It is, however, doubtful 
whether the Union would have been formed and the government under the 
Constitution have gone into effect in 1789 with chances of success unless 
New York, in a way the dividing line between the eastern and the middle 
States, and especially if Virginia, the great dominion to the South, had not 
decided for better or for worse to unite themselves with their sister States. 
Had the latter State not done so, the world might have lost the perfect type 
and model of a chief executive which the American people found in Wash- 
ington, who, as a Virginian, could not have been President of the Union in 
which Virginia was not represented. 

However, Virginia ratified the Constitution on June 26, 1788, but five 
days after the favorable action of New Hampshire, before the action of that 
State was known and while it appeared that Virginia, in addition to pro- 
posing the Constitution, had by its adherence to the Union made it operative. 

The struggle in Virginia was a struggle of giants. The ratification was 
opposed by Patrick Henry, the most famous of American orators, who was 
appointed a member of the Federal Convention but who declined to ac- 
cept, saying somewhat inelegantly but forcibly that he " smelt a rat." 

' Elliot, Debates, Vol. I, p. 325. 



AMENDMENTS AND RATIFICATIONS 313 

It was also opposed by George Mason, a member of the Convention, who 
refused to sign, primarily because Congress was not restrained by a two- 
thirds vote in matters of navigation and because of a lack of a bill of rights, 
and of whom Mr. Madison said " that he possessed the greatest talents for 
debate of any man he had ever seen, or heard speak." ^ It was a herculean 
task for the quiet, studious and unimpressive Madison to stem and to over- 
come the tide of such opposition. He was supported without the Conven- 
tion by General Washington and within the Convention by Edmund Ran- 
dolph who had refused to sign the Constitution largely because he felt it 
should be submitted for revision to a second convention which he now saw 
to be impossible. Mr. Madison was also aided by John Marshall, a yovmg 
and vigorous man of thirty-two, destined years later to expound the Consti- 
tution from the Bench and to make the more perfect Union even more perfect 
through a series of masterly decisions. Yet Mr. Madison, insisting that the 
Constitution be read in its entirety and that each clause be considered in 
relation to all of its parts instead of in isolation, was able to show that the 
Constitution did create a more perfect Union of States, just as we today 
believe that it has created the most perfect Union of States ever known. 

The vote, however, on June 25, 1788, was close, 89 delegates voting for 
its ratification and 79 against. The ratification was accompanied by a bill of 
rights of twenty articles, and the bill itself by twenty other amendments, 
which were to be presented to the Congress for adoption as amendments to 
the Constitution. If George Mason could not bend to his will the delegates of 
the Philadelphia Convention and impose upon them in express terms a bill of 
rights, he was irresistible in Virginia, to which State he had given a bill of 
rights prefixed to its Constitution, which is today a model; and if the advo- 
cates of amendment to the Constitution, as it was ultimately framed in 
Philadelphia, failed to impress their fellow delegates with the justness of 
their views, the Convention of Virginia stood squarely for amendment. 
And in order that the spirit in which the Constitution was adopted might be 
known and understood by their countrymen, the Convention accompanied 
it with the following declaration, which may at least be taken as evidence 
that the Virginians had no intention of degrading the State into a province: 
We, the delegates of the people of Virginia, duly elected in pursuance 
of a recommendation from the General Assembly, and now met in Con- 
vention, having fully and freely investigated and discussed the proceedings 
of the Federal Convention, and being prepared as well as the most mature 
deliberation hath enabled us, to decide thereon, — Do, in the name and in 
behalf of the people of Virginia, declare and make known, that the powers 
granted under the Constitution, being derived from the people of the 
United States, may be resumed by them, whensoever the same shall be per- 
verted to their injury or oppression, and that every power not granted 

' John P. Kennedy, Memoirs of the Life of William Wirt, 1849, Vol. I, p. 354. 



314 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

thereby remains with them, and at their will; that, therefore, no right, of 
any denomination, can be cancelled, abridged, restrained, or modified, by 
the Congress, by the Senate or House of Representatives, acting in any 
capacity, by the President, or any department or officer of the United States, 
except in those instances in which power is given by the Constitution for 
those purposes; and that, among other essential rights, the liberty of con- 
science, and of the press, cannot be cancelled, abridged, restrained, or modi- 
fied, by any authority of the United States. With these impressions, with 
a solemn appeal to the Searcher of all hearts for the purity of our inten- 
tions, and under the conviction that whatsoever imperfections may exist 
in the Constitution ought rather to be examined in the mode prescribed 
therein, than to bring the Union into danger by a delay with a hope of 
obtaining amendments previous to the ratifications, — We, the said dele- 
gates, in the name and in behalf of the people of Virginia, do, by these 
presents, assent to and ratify the Constitution recommended, on the 17th 
day of September, 1787, by the Federal Convention, for the government of 
the United States, hereby announcing to all those whom it may concern, that 
the said Constitution is binding upon the said people, according to an 
authentic copy hereto annexed, in the words following. . . .^ 

The contest in Nev^ York was even more severe than in Virginia, and, 
indeed, than in any other State ; for when the Convention met, the opponents 
of ratification were securely in the saddle under the presidency of George 
Clinton, Governor of the State, and under the leadership of Melancthon 
Smith, who, however, showed himself to be a man of principle and as such 
open to conviction. The friends of the Constitution, were, however, led in 
a masterly manner by Alexander Hamilton who, as is well known, took a 
rather insignificant part in the Philadelphia Convention, where he was out- 
voted by his two colleagues before they withdrew and where he apparently 
had little sympathy for any plan proposed by others and not much confi- 
dence in his own. Any constitution, however, was better to him than none. 
He loyally accepted the Constitution as drafted, as the best that could be 
got under the circumstances, and devoted his commanding abilities and his 
energy, which proved to be resistless, to its ratification by the State of which 
he was not a native but whereof he is today the most distinguished of a 
long line of distinguished citizens. 

For Colonel Hamilton it was not enough to argue and debate, and by 
means thereof to produce conviction within the Convention. He felt the 
necessity of creating an atmosphere without, which should influence opinion 
within the Convention. For this purpose he planned a series of papers 
explaining and justifying the Constitution, to be issued at rapid intervals in 
the public press of the State. With him in the undertaking were associated 
John Jay, who contributed five articles, and Mr. Madison who wrote some 
twenty-nine. He himself wrote fifty-one of the eighty-five articles, which 

' Elliot, Debates, Vol. I, p. 327. 



AMENDMENTS AND RATIFICATIONS 315 

taken tosrether form The Federalist, then a journalistic venture, today the The 

° •' •' Federalist 

classic exposition of the Constitution. 

But even the ability of Alexander Hamilton, John Jay and Robert R. 
Livingston within the New York Convention, with the aid of James Madison 
without its doors, might have proved unavailing had the stars in their 
courses not fought for the Constitution. The first week of the session in 
New York showed that two-thirds were opposed to ratification, but the news, 
welcome to Hamilton although distasteful to the majority, that the ninth 
State, New Hampshire, had ratified the Constitution, decided that the experi- 
ment was to be tried. On July 3d the news of the ratification by Virginia 
reached the members of the New York Convention. Should New York fail 
to adopt the Constitution it would be surrounded by the New England 
States on the East and New Jersey and Pennsylvania to the South, and it 
would be so far separated from Rhode Island and North Carolina, which 
had not then ratified the Constitution, that it could not well form a union 
with them. In the end, Melancthon Smith, leader of the opposition, rose 
and stated that he would vote for the Constitution, and by a majority of 
three it was adopted by the Convention, " in confidence that the amendments 
which shall have been proposed to the said Constitution will receive an 
early and mature consideration," and " in full confidence " that a convention 
should be called and convened for proposing amendments.^ 

The amendments were very elaborate. Their character may be judged 
by the opening paragraphs of what may be considered the preamble to the 
act of ratification, in which it is stated : 

That all power is originally vested in, and consequently derived from, 
the people, and that government is instituted by them for their common 
interest, protection, and security. 

That the enjoyment of life, liberty, and the pursuit of happiness, are 
essential rights, which every government ought to respect and preserve. 

That the powers of government may be reassumed by the people when- 
soever it shall become necessary to their happiness ; that every power, juris- 
diction, and right, which is not by the said Constitution clearly delegated 
to the Congress of the United States, or the departments of the govern- 
ment thereof, remains to the people of the several states, or to their respec- 
tive state governments, to whom they may have granted the same ; and that 
those clauses in the said Constitution, which declare that Congress shall 
not have or exercise certain powers, do not imply that Congress is entitled 
to any powers not given by the said Constitution ; but such clauses are to 
be construed either as exceptions to certain specified powers, or as inserted 
merely for greater caution.^ 

The adoption of the Constitution, however, even with express declara- 
tions and a series of recommendations, was a concrete victory for the cause 

' Ibid., Vol. i, p. 329. 
' Ibid., p. 2,27. 



316 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of union, inasmuch as it assured geographical unity and that the authority 
of the Government should extend from New Hampshire on the north to the 
south of Virginia. Rhode Island was on the outskirts and could not affect 
the Union ; and North Carolina, between Virginia and South Carolina, could 
not resist propinquity, which affects even the union of States. 

A Convention called in North Carolina adjourned August 4, 1788, with- 
out ratifying the Constitution, for the reasons stated in its resolution of 
August 1st of that month and year: 

Resolved, That a declaration of rights, asserting and securing from 
encroachments the great principles of civil and religious liberty, and the 
unalienable rights of the people, together with amendments to the most 
ambiguous and exceptionable parts of the said Constitution of government, 
ought to be laid before Congress, and the convention of the states that shall 
or may be called for the purpose of amending the said Constitution, for 
their consideration, previous to the ratification of the Constitution afore- 
said, on the part of the State of North Carolina.^ 

It is proper to say in this connection that the declaration of rights pro- 
posed by North Carolina consisted of twenty Articles, the amendments of 
twenty-six. The ratification, however, of eleven of the thirteen States, the 
formation of the Union and its successful operation without North Carolina 
and Rhode Island, caused the good people of the former State to bethink 
themselves, with the result that, on November 21, 1789, the people of North 
Carolina, assembled in convention, adopted and ratified " the said Consti- 
tution and form of government." And on May 29, 1790, the people of 
Rhode Island, in convention assembled, likewise adopted the Constitution, 
with a series of declarations in the nature of a bill of rights and of amend- 
ments almost as large as the State, which by this time had come to the con- 
clusion that the Union was more necessary to it than it was to the Union. 
Thus through the long and narrow way of amendments and ratifications, 
the course of the Constitution was finally fashioned. State and Union came 
to their own. Divergent interests, at first seemingly irreconcilable, merged. 
The way opened for the United States of America. 

' Elliot, Debates, Vol. i, pp. 331-2. 



XVI 

GOVERNMENT SET UP: AMENDMENTS 

Whilst the last members were signing it [the Constitution] Doct^ Franklin looking 
towards the Presidents Chair, at the back of which a rising sun happened to be painted, 
observed to a few members near him, that Painters had found it difficult to distinguish in 
their art a rising from a setting sun. 1 have said he, often and often in the course of the 
Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind 
the President without being able to tell whether it was rising or setting: But now at 
length I have the happiness to know that it is a rising and not a setting Sun. (Madison's 
Notes of Debates in the Federal Convention of 1787, Session of September 17, 1787, Docu- 
mentary History of the Constitution of the United States of America, 1786-1870, Vol. Ill, 
1900, p. 770.) 

It has hitherto been understood, that the supreme power, that is, the sovereignty of 
the people of the States, was in its nature divisible, and was in fact divided, according to 
the Constitution of the U. States, between the States in their united and the States in 
their individual capacities that as the States, in their highest sov. char., were competent to 
surrender the whole sovereignty and form themselves into a consolidated State, so they 
might surrender a part & retain, as they have done, the other part, forming a mixed Gov* 
with a division of its attributes as marked out in the Constitution. . . . 

Certain it is that the constitutional compact of the U. S. has allotted the supreme 
power of Gov' partly to the United States by special grants, partly to the individual States 
by general reservations; and if sovereignty be in its nature divisible, the true question 
to be decided is, whether the allotment has been made by the competent authority, and 
this question is answered by the fact that it was an act of the majority of the people in 
each State in their highest sovereign capacity, equipollent to a unanimous act of the 
people composing the State in that capacity. (James Madison on "Sovereignty," 1835, 
Gaillard Hunt, Editor, The Writings of James Madison, Vol. IX, 1910, pp. 568-9, 572.) 

"These states are constitutent parts of the United States. They are members of one 
great empire," ("members of the American confederacy; " 2 Pet. 312,) "for some pur- 
poses sovereign, for some purposes subordinate." 6 Wh. 414. The political character of 
the several states of this Union, in relation to each other, is this : " For all national pur- 
poses, the states and the citizens thereof, are one; united under the same sovereign authority, 
and governed by the same laws. In all other respects the states are necessarily foreign to 
and independent of each other. "They form a confederated government; yet the several 
states retain their individual sovereignties, and with respect to their municipal regulations, 
are to each other sovereign." 2 Pet. 590, 1; 10 Pet. 579. S. P.; 12 Wh. 334. "The 
national and state systems are to be regarded as one zvhole." 6 Wh. 419. " In America, 
the powers of sovereignty are divided between the government of the Union, and those 
of the states. They are each sovereign with respect to the objects committed to it; 
and neither sovereign with respect to the objects committed to the other." 4 Wh. 410. 
(Mr. Justice Baldwin, A General Vieiv of the Origin and Nature of the Constitution and 
Government of the United States, 1837, p. 14.) 

The great and incurable defect of the confederation was, the dependence of con- 
gress on state laws to execute and to carry into effect their resolutions and requisi- 
tions: generally speaking, the jurisdiction of the old and new congress was the same, 
except as to the regulation of commerce and a judicial system. The states would not 
delegate the power of execution to operate directly on the subjects of its jurisdiction ; 
the people of the states granted this power, by the constitution, by which alone the federal 
government became efficient and competent to the objects of its creation. (Mr. Justice 
Baldwin, A General View of the Origin and Nature of the Constitution and Government 
of the United States, 1837, pp. 105-106.) 

317 



318 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

In this outline of our old constitution of government, we see the pattern of our new 
one, though with a different distribution of powers ; the most important of those which 
are in the king, by prerogative, in England, are granted to congress; the judicial power 
is vested in the courts of the United States, exclusively; and the executive power is as 
much defined by enumeration, as the legislative and judicial powers of the constitution 
are. Herein consists one great difference between the two governments ; and from this 
there arises another, which is all important. The powers not delegated, or prohibited, 
being reserved to the states respectively, or the people; none can exist by prerogative, or 
inherent power, in any branch of the government. (Mr. Justice Baldwin, A General View 
of the Origin and Nature of the Constitution and Government of the United States, 1837, 
PP- 54-55-) 

This change was effected by the constitution, which, in the language of this Court, is 
a grant. " The grant does not convey power, which might be beneficial to the grantor, if 
retained by himself, or which can move solely to the benefit of the grantee; but is an 
investment of power for the general advantage, in the hands of agents, selected for that 
purpose, which power can never be exercised by the people themselves, but must be placed 
in the hands of agents or lie dormant," 9. Wh. 189. The language of the constitution is 
the same. " All legislative powers herein granted, shall be vested in a congress of the 
United States," &c. " The executive power shall be vested in a president of the United 
States of America." " The judicial power of the United States shall be vested in one 
Supreme Court." 

Here then, there is something visible to the judicial eye, tangible by judicial minds, 
reasoning, illustration, and analogy; intelligible by judicial rules and maxims, which, 
through all time, have prescribed its nature, effect, and meaning. It is a grant, by a 
grantor, to a grantee, of the things granted; which are, legislative, executive, and judicial 
pozver, vested by a constituent, in agents, for the enumerated purposes and objects of the 
grant. It declares the grantor and constituent, to be " the people of the United States," 
who, for the purposes set forth, " ordained and established " it as a " constitution for the 
United States of America;" "the supreme law of the land;" creating what its framers 
unanimously named, " the federal government of these states." Its frame was " done in 
convention, by the unanimous consent of the states present." The 7th article whereof 
declared that, " the ratification of the conventions of nine states, shall be sufficient for 
the establishment of this constitution, between the states so ratifying the same." And, to 
leave no doubt of their intention, as to what should be deemed a convention of a state, 
the members thereof, by the unanimous order of the convention, laid it before congress, 
with their opinions, that it should be submitted to a convention of delegates chosen in 
each stale, by the people thereof, under the recommendation of its legislatures, for their 
assent and ratification. 1 Vol. Laws U. S. 70, 71. (Mr. Justice Baldwin, A General View 
of the Origin and Nature of the Constitution and Government of the United States, 1837, 

pp. II'I2.) 

These colonies were not declared to be free and independent states, by substituting 
congress in the place of king and parliament; nor by the people of the states, transferring 
to the United States, that allegiance they had owed to the crown; or making with the 
state, or nation, of the United States, a political connection, similar to that which had 
existed with the state of Great Britain. 

A state, to be free, must be exempt from all external control ; on a " separate and 
equal station with the other powers of the earth ; " within whose territorial limits, no 
state or nation can have any jurisdiction : this is of the essence of freedom, and being 
free, in the grant and exercise of legislative power at their pleasure, a state, and the 
people thereof, must have the absolute sovereignty, illimitable, save by the people them- 
selves. Such was the situation of the states and people, from 1776 till 1781, when the 
several state legislatures made an act of federation, as allied sovereigns, which was only 
a league or alliance ; and being utterly defective, was substituted by a new act of federa- 
tion ; a constitution, ordained by the people of the several states, in their primary inherent 
right and power, existing in themselves ; before any portion of its sovereignty had been 
impaired by any act of federation, or any severance from its territorial boundary. (Mr. 
Justice Baldwin, A General View of the Origin and Nature of the Constitution and' 
Government of the United States, 1837, p. 29.) 

That a new government was necessary was the universal opinion ; but the diffi- 
culty was, in agreeing what additional powers should be given to congress by the 
surrender of the states; no statesman or jurist pretended that this could be done in any 



GOVERNMENT SET UP: AMENDMENTS 319 

other way than by the voluntary act of the separate states; in their sovereign capacity, by 
the people in conventions. . . . 

The powers of the general government are made up of concessions from the several 
states; whatever is not expressly given to the former, the latter expressly reserves;" 
7 Cr. 33; United States v. Hudson and Goodwin. (Mr. Justice Baldwin, A General Vieiv 
of the Origin and Nature of the Constitution and Government of the United States, 1837, 
pp. 66-67.) 

On the other hand, if the government is admitted to be the work of the separate 
people of each state, there can be no pretext for nullification: the sovereign power of the 
state has made the grant; has declared it the law of the land, supreme in obligation over 
its own laws and constitution; has commanded its judges to obey it; has appointed a 
tribunal to expound it; and bound itself to abide by changes to be made by alterations or 
amendments. {Mr. Justice Baldwin, A General View of the Origin and Nature of the 
Constitution and Governjn-ent of the United States, 1837, p. loi.) 

I go further, and affirm that bills of rights, in the sense and to the extent in which 
they are contended for, are not only unnecessary in the proposed Constitution, but would 
even be dangerous. They would contain various exceptions to powers not granted ; and, 
on this very account, would afford a colorable pretext to claim more than were granted. 
For why declare that things shall not be done which there is no power to do? Why, for 
instance, should it be said that the liberty of the press shall not be restrained, when no 
power is given by which restrictions may be imposed? . . . This may serve as a specimen 
of the numerous handles which would be given to the doctrine of constructive powers, by 
the indulgence of an injudicious zeal for bills of rights. . . . 

There remains but one other view of this matter to conclude the point. The truth is, 
after all the declamations we have heard, that the Constitution is itself in every rational 
sense, and to every useful purpose, a bill of rights. The several bills of rights 
in Great Britain form its constitution, and conversely the constitution of each State is its 
bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the 
Union. {Alexander Hamilton in The Federalist, No. 84, 1788, Paul Leicester Ford, 
Editor, 1898, pp. 573-575-) 

Articles in Addition To, and Amendment Of, the Constitution of the United States 
OF America. Proposed by Congress (1789). and Ratified by the Legislatures of the 
Several States (1789-1791) Pursuant' to the Fifth Article of the Original Con- 
stitution. 

Article I. 

Congress shall make no law respecting an establishment of religion, or prohibiting the 
free exercise thereof ; or abridging the freedom of speech, or of the press ; or the right 
of the people peaceably to assemble, and to petition the Government for a redress of 
grievances. 

Article II. 

A well regulated Militia, being necessary to the security of a free State, the right of 
the people to keep and bear Arms, shall not be infringed. 

Article III. 

No Soldier shall, in time of peace be quartered in any house, without the consent of 
the Owner, nor in time of war, but in a manner to be prescribed by law. 

Article IV. 
The right of the people to be secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but 
upon probable cause, supported by Oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to be seized. 

Article V. 
No person shall be held to answer for a capital, or otherwise infamous crime, unless 
on a presentment or indictment of a Grand Jury, except in cases arising in the land or 
naval forces, or in the Militia, when in actual service in time of War or public danger; 
nor shall any person be subject for the same offence to be twice put in jeopard v of life 
or hmb ; nor shall be compelled in any Criminal Case to be a witness against himself, nor 



320 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

be deprived of life, liberty, or property, without due process of law; nor shall private prop- 
erty be taken for public use, without just compensation. 

Article VI. 
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury of the State and district wherein the crime shall have been 
committed, which district shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining Witnesses in his favor, and to have the 
Assistance of Counsel for his defence. 

Article VII. 
In suits at common law, where the value in controversy shall exceed twenty dollars, 
the right of trial by jury shall be preserved, and no fact tried by a jury shall be other- 
wise re-examined in any Court of the United States, than according to the rules of the 
common law. 

Article VIII. 
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 
punishments inflicted. 

Article IX. 
The enumeration in the Constitution, of certain rights, shall not be construed to deny 
or disparage others retained by the people. 

Article X. 
The powers not delegated to the United States by the Constitution, nor prohibited by 
it to the States, are reserved to the States respectively, or to the people. 

It has been said that the liberty which the Anglo-Saxon race everywhere enjoys is 
derived from the British Constitution as settled by the Revolution of 1688. All subsequent 
revolutions in Europe are not more plainly the offspring of the French Revolution than was 
ours of the Revolution of 1688. It was founded, like that, upon a breach of the funda- 
mental law by the rulers. The language of the State Conventions at the time of the 
separation from England shows that the people universally regarded the liberties for 
which they were contending as an inheritance from their forefathers. When their inde- 
pendence was achieved, the object of the people was still to preserve under the new 
conditions these ancient liberties. " Upon that body and stock of inheritance," to adopt 
the language of Burke in reference to the Whig leaders of 1688, "they took care not to 
inoculate any scion alien to the nature of the original plant." Although the framers of 
our Constitution were without any grasp of the modern conception of the historical contin- 
uity of the race, they revered the ancient constitutional traditions of England. And thus 
it comes to pass that Magna Charta, the Acts of the Long Parliament, the Declaration 
of Right, the Declaration of Independence, and the Constitution of 1787 constitute the 
record of an evolution. (PV. T. Brantly, Of the Influence of European Speculation in the 
Formaiion of the Fcd-cral Constitution, i88o, the Southern Law Review, New Series, Vol. 
VI, i88i, pp. 351-352) 

The first ten amendments were adopted immediately after the Constitution. Several 
States had ratified it upon the faith of the pledge given by the Federalists that such amend 
ments would be made. They are in the nature of a Bill of Rights, the unwise omission of 
which from the Constitution was made the subject of loud complaint. These amendments 
recite the immemorial privileges of British subjects, and employ in some instances the 
very words of Magna Charta and the Declaration of Right. {W. T. Brantly, Of the Influence 
of European Speculation in the Formation of the Federal Constitution, j88o, The Southern 
Law Review, New Series, Vol. VI, i88i, p. 366.) 

The several agreements in England for better securing the rights and liberties of the 
subjects, were the models for the "Bill of Rights," as distinguished in some state constitu- 
tions from the " Frame of Government." The more farsighted saw this distinction to be 
illusory, and justly observed that the constitution was itself a " Bill of Rights " {James 
Harvey Robinson, The Original and Derived Features of the Constitution, 1890. Annals 
of th'C American Academy of Political and Social Science, 1890-1891, Vol. I, p. 209.) 

In its chief features, then, we find our Constitution to be a skillful synthesis of elements 
carefully selected from those entering into the composition of the then existing state gov- 
ernments. The Convention "was led astray by no theories of what might be good, but 
clave closely to what experience had demonstrated to be good." (James Harvey Robinson, 
The Original and Derived Features of the Constitution, 1890, Annals of the American/ 
Academy of Political and Social Science, 1890-1891, Vol. I, p. 242.) 



CHAPTER XVI 

GOVERNMENT SET UP: AMENDMENTS 

It was foreseen by the members of the Convention that if a constitution 
were to be formed which would meet the approval of the States, a period 
would necessarily elapse between its adoption and the organization of the 
government under its provisions. Jn the meantime the Congress of the Con- 
federation would need to continue, and it would be required to take measures 
to institute the new government. The twelfth of Mr. Randolph's resolu- 
tions dealt in general terms with this question, to the effect that " provision 
ought to be made for the continuance of Congress and their authorities and 
privileges, until a given day after the reform of the articles of Union shall 
be adopted." The first draft of the Constitution prepared by the Committee 
of Detail and reported by it on August 6th went more into particulars, but 
not wholly to the satisfaction of the Convention, which slightly amended 
and adopted the twenty-third Article in the session of August 31st. It was, 
however, thought best that the Article, being of a temporary nature, be 
stricken from the Constitution, and be included in the formal letter of the 
President of the Convention transmitting the Constitution to the Congress, 
in which document it is thus worded : 

That it is the Opinion of this Convention, that as soon as the Conven- 
tions of nine States shall have ratified this Constitution, the United States 
in Congress assembled should fix a Day on which Electors should be 
appointed by the States which shall have ratified the same, and a Day on 
which the Electors should assemble to vote for the President, and the 
Time and Place for commencing Proceedings under this Constitution. That 
after such Publication the Electors should be appointed, and the Senators 
and Representatives elected : That the Electors should meet on the Day 
fixed for the Election of the President, and should transmit their Votes 
certified, signed, sealed and directed, as the Constitution requires, to the 
Secretary of the United States in Congress assembled, that the Senators 
and Representatives should convene at the Time and Place assigned: that 
the Senators should appoint a President of the Senate, for the sole Pur- 
pose of receiving, opening and counting the Votes for President; and, that 
after he shall be chosen, the Congress, together with the President, should, 
without Delay, proceed to execute this Constitution.^ 

Upon the ratification of the Constitution by the ninth of the States, the 
Congress, to which the Constitution had been transmitted, was in a position 

' Documentary History of the Constitution, Vol. II, pp. 20-1. 

321 



322 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to take the necessary action. Therefore on July 2, 1788, it was, upon the 
suggestion of the President of that body, " Ordered, That the ratifications 
of the constitution of the United States transmitted to Congress be referred 
to a Com", to examine the same and report an Act to Congress for putting 
the said constitution into operation in pursuance of the resolutions of the 
late federal Convention." ^ The motion passing in the afifirmative, the com- 
mittee to which the ratifications were referred reported on July 14, 1788, — 
a year to a day before the storming of the Bastille, ushering in the new 
order of things in the Old World — an act for this purpose, which was adopted 
on September 13, 1788, in the following form: 

Whereas the Convention assembled in Philadelphia pursuant to the 
resolution of Congress of the 21^*. of Feby. 1787 did on the 17'^. of Sep'. 
in the same year report to the United States in Congress assembled a con- 
stitution for the people of the United States, Whereupon Congress on the 
28 of the same Sept. did resolve unanimously " That the said report with the> 
resolutions & letter accompanying the same be transmitted to the several 
legislatures in order to be submitted to a convention of Delegates chosen 
in each state by the people thereof in conformity to the resolves of the 
convention made and provided in that case " And whereas the constitu- 
tion so reported by the Convention and by Congress transmitted to the sev- 
eral legislatures has been ratified in the manner therein declared to be suf- 
ficient for the establishment of the same and such ratifications duly authen- 
ticated have been received by Congress and are filed in the Office of the 
Secretary therefore Resolved That the first Wednesday in Jan^. next be 
the day for appointing Electors in the several states, which before the said 
day shall have ratified the said Constitution; that the first Wednesday in 
feby. next be the day for the electors to assemble in their respective states 
and vote for a president; And that the first Wednesday in March next be 
the time and the present seat of Congress the place for commencing pro- 
ceedings under the said constitution.^ 

The New The elcctious were held in the States which had ratified the Constitution. 

Government 

Begun Qj^ March 4, 1789, the government under the Constitution began in the city 

of New York, where on April 30, 1789, George Washington, the unanimous 
choice of the electors, was inaugurated President of the United States. 

The great purpose for which the delegates had assembled in convention 
throughout the summer of 1787 was accomplished. A Constitution creating 
a more perfect Union of the States had been formed, and the government 
thereunder organized. But the apprehensions of the States which had rati- 
fied the Constitution with much difficulty and, in certain cases, with no little 
misgiving, remained to be satisfied. If the declarations, explanations, and pro- 
posed amendments which accompanied the ratifications in some instances 
did not create a legal, they nevertheless raised a moral, obligation to propose 

* Documentary History, Vol. II, p. 161. 
' Ibid., pp. 263-4. 



GOVERNMENT SET UP: AMENDMENTS 323 

amendments to the Constitution in accordance with its provisions in order 
to meet the expressed desires of States which might not have ratified the 
Constitution without assurances amounting to a moral certainty that appro- 
priate steps would be taken to this end. 

Accordingly, on June 8, 1789, in the first session of the first Congress Amendments 
held under the Constitution, Mr. Madison, then a member of the Hbuse of 
Representatives from Virginia, moved in that body, in accordance with 
notice to that effect of the 4th instant, the consideration of various amend- 
ments to the Constitution. In support of the motion he said : 

this house is bound by every motive of prudence, not to let the first ses- 
sion pass over without proposing to the state legislatures some things to 
be incorporated into the constitution, as will render it as acceptable to the 
whole people of the United States, as it has been found acceptable to a 
majority of them. . . . 

It cannot be a secret to the gentlemen in this house, that, notwithstand- 
ing the ratification of this system of government by eleven of the thirteen 
United States, in some cases unanimously, in others by large majorities ; 
yet still there is a great number of our constituents who are dissatisfied 
with it ; among whom are many respectable for their talents, their patriotism, 
and respectable for the jealousy they have for their liberty, which, though 
mistaken in its object, is laudable in its motive. . . . We ought not to 
disregard their inclination, but, on principles of amity and moderation, con- 
form to their wishes, and expressly declare the great rights of mankind 
secured under this constitution.^ 

Mr. Madison then alluded to the two States " that have not thought fit 
to throw themselves into the bosom of the confederacy," and, saying on 
this point that " it is a desirable thing, on our part as well as theirs, that a 
re-union should take place as soon as possible," he predicted if measures 
should be taken at that juncture which were both prudent and requisite, 
" that in a short time we should see that disposition prevailing in those 
states that are not come in, that we have seen prevailing in those states 
which are.^ 

After stating that all power is subject to abuse, and admitting that it was 
possible to guard more securely against possible abuse of the powers granted 
to the general government than had been done, he said that by so doing 
they had something to gain and nothing to lose. While unwilling to offer 
amendments going to the whole structure of the government, he was never- 
theless willing to propose such as seemed likely in his opinion to meet " with 
the concurrence of two-thirds of both houses, and the approbation of three- 
fourths of the state legislatures," assuring the House that he would not 
propose a single alteration which he did not wish to see made, and which in 

* The Congressional Register, Vol. I, pp. 424-5. 
' Ibid., p. 425. 



324 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

his opinion was " intrinsically proper in itself, or proper because it is wished 
for by a respectable number " of his fellow citizens. 

Passing to the objections which had been made against the Constitution, 
he said that they were of various kinds. " Some were levelled against its 
structure, because the president was without a council; because the senate, 
which is a legislative body, had judicial powers in trials on impeachments; 
and because the powers of that body were compounded in other respects, 
in a manner that did not correspond with a particular theory; because it 
grants more power than is supposed to be necessary for every good purpose, 
and controuls the ordinary powers of the state governments." ^ 
Demand But Mr. Madisou avowed his belief that " the great mass of the people 

for a Bill . ° r r 

of Rights ^yjiQ opposed it, disliked it because it did not contain effectual provision against 

the encroachments on particular rights, and those safeguards which they have 
been long accustomed to have interposed between them and the magistrate 
who exercised the sovereign power; nor ought we to consider them safe, 
while a great number of our fellow citizens think these securities neces- 
sary." That is to say, that while certain provisions of the Constitution were 
objected to, the great criticism directed against it, as a whole, was that it did 
not contain a bill of rig'hts. Such a bill of rights was necessary for the pro- 
tection of the people of the States against the abusive power on the part of 
the general government making it clear to them; although it seemed evident 
to Mr. Madison, that the powers not granted to the general government 
under the Constitution were reserved to the States, and therefore beyond the 
reach of the United States as such. 

Mr. Madison further declared that he did not believe in the necessity of 
a bill of rights, but that he considered one neither improper nor altogether 
useless. Adverting to the bills of this nature passed by the States, he thus 
analyzed their content: 

" In some instances they assert those rights which are exercised by the 
people in forming and establishing a plan of government. In other 
instances, they specify those rights which are retained when particular 
powers are given up to be exercised by the legislature. In other instances, 
they specify positive rights, which may seem to result from the nature of 
the compact. ... In other instances, they lay down dogmatic maxims 
with respect to the construction of the government; declaring, that the 
legislative, executive, and judicial branches shall be kept separate and dis- 
tinct. . . . 

But whatever may be [the] form which the several states have adopted in 
making declarations in favor of particular rights, the great object in view 
is to limit and qualify the powers of government, by excepting out of the 
grant of power those cases in which the government ought not to act, or 
to act only in a particular mode. They point these exceptions sometimes 
against the abuse of the executive power, sometimes against the legislative, 

* The Congressional Register, Vol. i, p. 426. 



GOVERNMENT SET UP: AMENDMENTS 325 

and, in some cases, against the community itself; or, in other words, 
against the majority in favor of the minority." ^ 

Without enumerating the amendments which Mr. Madison proposed, 
which, for the most part were adopted in substance, if not in form, there 
is one matter upon which his exact language should be quoted, as it deals 
with the relation of the States to the Union and the powers which they 
apparently thought they reserved from the grant to the general government. 
On this point Mr. Madison said: 

" I find, from looking into the amendments proposed by the state con- 
ventions, that several are particularly anxious that it should be declared 
in the constitution, that the powers not therein delegated, should be 
reserved to the several states. Perhaps words which may define this more 
precisely, than the whole of the instrument now does, may be considered 
as superfluous. I admit they may be deemed unnecessary ; but there can 
be no harm in making such a declaration, if gentlemen will allow that the 
fact is as stated, I am sure I understand it so, and do therefore pro- 
pose it." ^ 

After some discussion Mr. Madison's motion was referred to a Com- 
mittee of the Whole on the state of the Union. On July 21st when he 
brought the question of amendments again to the attention of the House, 
it was ordered after debate, " that Mr. Madison's motion, stating certain 
specific amendments, proper to be proposed by congress to the legislatures 
of the states, to become, if ratified by three-fourths thereof, part of the 
constitution of the United States, together with the amendments to the said 
constitution as proposed by the several states, to be referred to a committee, 
to consist of a member from each state, with instruction to take the subject 
of amendments to the constitution of the United States, generally into their 
consideration, and to report thereupon to the house." ^ 

On July 27th the Committee reported, and the report was ordered to lie 
on the table. On August 13th the House took up the report of the Com- 
mittee and debated it continuously, during the course of which other amend- 
ments were proposed. On August 22nd an agreement was reached upon 
the amendments to be submitted, and on the 24th, a committee appointed for 
rearrangement of the articles of amendments to the Constitution as agreed 
to on the 21st, presented its report with the following resolution to be pre- 
fixed to them : 

Resolved, by the senate and house of representatives of the United 
States of America in Congress assenabled, two thirds of both houses deem- 
ing it necessary, that the following articles be proposed to the legislatures 

i/fcjU, pp. 430-1. 
' Ihid., p. 436. 
"Ibid., Vol. ii, p. 111. 



Relation 

of States 
to the 
Union 



326 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of the several states as amendments to the constitution of the United States, 
all of any of which articles, when ratified by three fourths of the said 
legislatures, to be valid to all intents and purposes as part of the said 
constitution.^ 

B^orf"^"*^ The House immediately transmitted the proposed amendments, seven- 

tbe Senate ^^^^ -^^ Humbef, to the Senate for their consideration, where they were 

received on the 25th, and considered on September 2d, 4th, 7th, and 25th. 
The Senate as the result of conference concurred in the amendments pro- 
posed by the House of Representatives to the amendments of the Senate, 
and the following twelve were transmitted by the President of the United 
States to the Executives of the eleven States which had ratified the Consti- 
tution, and likewise to those of the States of Rhode Island and North 
Carolina. 

Article the first. . . . After the first enumeration required by the first 
Article of the Constitution, there shall be one Representative for every thirty 
thousand, until the number shall amount to one hundred, after which, the pro- 
portion shall be so regulated by Congress, that there shall not be less than one 
hundred Representatives, nor less than one Representative for every forty 
thousand persons, until the number of Representatives shall amount to two 
hundred, after which the proportion shall be so regulated by Congress, that 
there shall not be less than two hundred Representatives, nor more than one 
Representative for every fifty thousand persons. 

Article the second. . . . No law, varying the compensation for the serv- 
ices of the Senators and Representatives, shall take effect, until an election of 
Representatives shall have intervened. 

Article the third. . . . Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances. 

Article the fourth. ... A well regulated Militia, being necessary to the 
security of a free State, the right of the people to keep and bear Arms, shall 
not be infringed. 

Article the fifth. ... No Soldier shall, in time of peace be quartered in 
any house, without the consent of the Owner, nor in time of war, but in a 
manner to be prescribed by law. 

Article the sixth. . . . The right of the people to be securq in their per- 
sons, houses, papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 

Article the seventh. . . . No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the Militia, when 
in actual service in time of War or public danger; nor shall any person be 
subject for the same offence to be twice put in jeopardy of life or limb; nor 
shall be compelled in any criminal case to be a witness against himself, nor be 

' Congressional Register, Vol. IT, p. 259. 



GOVERNMENT SET UP: AMENDMENTS 327 

deprived of life, liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just compensation. 

Article the eighth. ... In all criminal prosecutions, the accused shall 
enjoy the right of a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against him; to 
have compulsory process for obtaining witnesses in his favor; and to have the 
Assistance of Counsel for his defence. 

Article the ninth. ... In Suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury, shall be otherwise re-examined, in any Court of 
the United States, than according to the rules of the common law. 

Article the tenth. . , . Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

Article the eleventh. . . . The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage others retained by the people. 

Article the twelfth. . . . The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserv^ed to the 
States respectively, or to the people.^ 

Mr. Madison, who is to be regarded not merely as the father of the Con- 
stitution but as the initiator of the amendments to that instrument, had pro- 
posed that the amendments themselves should not only modify the sense of 
the Constitution, but that they should be incorporated in the text in lieu of 
the rejected matter. But fortunately the view prevailed that the text of 
the instrument should be preserved inviolate, and that the amendments, in 
the form of articles, should be added to its text. It is perhaps also of inter- 
est to add that the amendments, reasonable and acceptable in themselves, 
proposed by the opponents of the Constitution but rejected by the majority 
of the Convention of Pennsylvania called to consider that instrument, are 
alleged to have been the source of Mr. Madison's propositions." 

Of the twelve amendments submitted to the States, the first two failed 
for lack of the required majority, but the remaining ten were adopted and 
form the first ten amendments to the Constitution of the United States. 
Submitted as they were by the first Congress under the Constitution and 
adopted within two years thereafter, they can be considered as the authorita- 
tive and contemporaneous interpretation of the States of the Union in the 
matter of their relation to the government of the Union, which the States 
had created by vesting it with certain powers whereof they divested them- 

' Documentary History, Vol. II, pp. 321-4. 

' They are fifteen in number, and are remarkable as containing the substance of the ten 
amendments afterwards added to the Constitution. Similarity so marked can not be acci- 
dental. There is much reason, therefore, to believe that when Mr. ]^.Iadi?on, in 1789, 
drew up the amendments for the House of Representatives, he made use of those offered 
by the minority of the Convention of Pennsylvania. See Pennsylvania and the Federal Con- 
stitution, McMaster and Stone ed., 1888, p. 19. The text of the amendments is to be found 
on pp. 321-3 of that volume. 



328 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Dekgated°* sclvcs. The ten amendments are in their entirety limitations upon the gen- 

t^^hl^stlt^et eral power of the Government. The ninth and tenth cannot be too often 

pondered by those who would understand the nature of the more perfect 

Union created by the Constitution, and who would like to see something of 

the kind obtain in the society ol nations. They are therefore quoted : 

The enumeration in the Constitution, of certain rights, shall not be con- 
strued to deny or disparage others retained by the people. (Article IX.) 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to 
the people. (Article X.) 

It is believed that there would have been little opposition within and 
without the Federal Convention to a bill of rights composed of the matters 
included within the first ten amendments, which are themselves in the nature 
of a bill of rights. It is not too much to say that, if such a course had 
been taken, opposition to the Constitution would have been largely dis- 
armed, if not rendered wholly powerless. The truth of the matter seems 
to be that, as always happens in an international conference, the discussions 
moved in a leisurely way at the beginning; that, in the course of its sessions, 
propositions were made and discussed in such numbers as to impede prog- 
ress; and that, in the closing days of the session, the members, in sheer 
desperation to do something to justify their calling and to adjourn within 
a reasonable period, became excited, not to say irascible; and that they re- 
jected measures which they would otherwise have adopted, on the ground that 
they were unnecessary or that their adoption would unduly prolong the 
session, notwithstanding the fact that, if unnecessary, it would not hurt to 
adopt them, especially as their adoption would tranquilize the minds of 
their proposers. 

Mr. Mason's proposal for a bill of rights, — and perhaps as the framer 
of the Virginian Bill of Rights he appeared to his colleagues a trifle 
obsessed with its importance, — received scant consideration, made, as it was, 
in the closing days. On September 12th Mr. Mason stated that " he wished 
the plan had been prefaced with a Bill of Rights, & would second a Motion 
if made for the purpose — It would give great quiet to the people; and with 
the aid of the State declarations, a bill might be prepared in a few hours." ^ 
The Convention, however, made short shrift of the proposal, and after 
other observations in the nature of remarks, the proposal made by Mr. 
Gerry of Massachusetts and seconded by Mr. Mason was negatived by ten 
of the eleven States, with Massachusetts abstaining. 

The spirit of the Convention at this time is perhaps best shown by the 

^Documentary History, Vol. Ill, p. 734. 



GOVERNMENT SET UP: AMENDMENTS 329 

action of the Convention on the 15th, when a proposal was made that an 
address should be prepared to the people to accompany the Constitution, 
inasmuch, as stated by its proposer, as " the people had been accustomed to 
such on great occasions, and woiiid expect it on this." To this proposal 
Mr. Rutledge of South Carolina objected, " on account of the delay it would 
produce and the impropriety of addressing the people before it was known 
whether Congress would approve and support the plan." The motion was 
rejected by a vote of six States to four, with North Carolina abstaining.^ 

Many years after the adjournment of the Convention, Mr. Madison, 
speaking of the method of electing the President, said, in a letter dated 
August 23, 1823, addressed to Mr. George Hay: 

As the final arrangement of it took place in the latter stage of the 
Session, it was not exempt from a degree of the hurrying influence pro- 
duced by fatigue and impatience in all such Bodies, tho' the degree was 
much less than usually prevails in them.^ 

The general view on the subject of a bill of rights, at least the view of the 
moderate reformers, is best expressed by Washington in a letter to 
Lafayette, dated April 28, 1788, in which he says: 

There was not a member of the convention, I believe, who had the least 
objection to what is contended for by the advocates for a Bill of Rights 
and Trial by Jury. The first, where the people evidently retained every 
thing, which they did not in express terms give up, was considered nuga- 
tory . . . and, as to the second, it was only the difficulty of establishing 
a mode, which should not interfere with the fixed modes of any of the 
States, that induced the convention to leave it as a matter of future 
adjustment.* 

Writing many years after the event, Mr. Madison himself used the following 
language in a letter dated November 27, 1830, addressed to Mr. Andrew 
Stevenson, which states better than any amount of argument Mr. Mason's 
case: 

Besides the restrictive & explanatory amendments to the text of the 
Constitution it may be observed, that a long list was premised under the 
name and in the nature of " Declarations of Rights " ; all of them indicat- 
ing a jealousy of the federal powers, and an anxiety to multiply securities 
against a constructive enlargement of them. But the appeal is more par- 
ticularly made to the number & nature of the amendments proposed to be 
made specific & integral parts of the Constitutional text. 

No less than seven States, it appears, concurred in adding to their rati- 

' Ibid., Vol. iii, p. 749. 

* The Writings of James Madison. Hunt ed., Vol. ix, p. 147. 

' Ford, The Writings of George Washington, Vol. ii, p. 256 ; Sparks, Vol. ix, pp. 357-8. 



330 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

fications a series of amendments, w'=''. they deemed requisite. Of these 
amendments, nhie were proposed by the Convention of Massachusetts, five 
by that of S. Carolina, twelve by that of N. Hampshire, twenty by that of 
Virginia, thirty-three by that of N. York, twenty-six by that of N. Carolina, 
twenty-one by that of R. Island. 

Here are a majority of the States, proposing amendments, in one 
instance thirty-three by a single State; all of them intended to circum- 
scribe the powers granted to tlie General Government, by explanations, 
restrictions or prohibitions.^ 

Experience has shown that the amendments to the Constitution, in sub- 
stance though not in form a Bill of Rights, were not useless. They have 
been frequently invoked on appropriate occasions, and they have been the 
subject of many appeals to the Supreme Court. They are, we believe uni- 
versal truths and therefore susceptible of universal application; and indeed 
but yesterday they were weighed and found not wanting by a distinguished 
Secretary of War, who restated them v^ith slight changes, and additions, 
and prescribed them for the government of the Philippines in 1900. Thus 
Mr. Root said in his instructions approved by the President on April 
7, 1900: 

It is evident that the most enlightened thought of the Philippine 
Islands fully appreciates the importance of these principles and rules, and 
they will inevitably within a short time command universal assent. Upon 
every division and branch of the government of the Philippines, therefore) 
must be imposed these inviolable rules : 

That no person shall be deprived of life, liberty, or property without 
due process of law ; that private property shall not be taken for public use 
without just compensation; that in all criminal prosecutions the accused 
shall enjoy the right to a speedy and public trial, to be informed of the 
nature and cause of the accusation, to be confronted with the witnesses 
against him, to have compulsory process for obtaining witnesses in his 
favor, and to have the assistance of counsel for his defense ; that excessive 
bail shall not be required, nor excessive fines imposed, nor cruel and 
unusual punishment inflicted; that no person shall be put twice in jeopardy 
for the same offense, or be compelled in any criminal case to be a witness 
against himself; that the right to be secure against unreasonable searches 
and seizures shall not be violated ; that neither slavery nor involuntary 
servitude shall exist except as a punishment for crime ; that no bill of 
attainder or ex post facto law shall be passed; that no law shall be passed 
abridging the freedom of speech or of the press, or the rights of the people 
peaceably to assemble and petition the Government for a redress of 
grievances ; that no law shall be made respecting an establishment of 
religion or prohibiting the free exercise thereof, and that the free exercise 
and enjoyment of religious profession and worship without discrimination 
or preference shall forever be allowed.^ 

^ Writi^igs of Madison, Vol. ix, pp. 421-2. 

' Elihu Root, Th-e Military and Colonial Policy of the United States, Robert Bacon and 
J. B. Scott ed., pp. 291-2. 



GOVERNMENT SET UP : AMENDMENTS 331 

And in the case of Kepner v. United States (195 U. S., 100, 123-4), 
decided by the Supreme Court in 1903, Mr. Justice Day, speaking of these 
instructions, thus comments upon them : 

These words are not strange to the American lawyer or student of con- 
stitutional history. They are the famihar language of the Bill of Rights, 
slightly changed in form, but not in substance, as found in the first nine 
amendments to the Constitution of the United States, with the omission of 
the provision preserving the right to trial by jury and the right of the 
people to bear arms, and adding the prohibition of the Thirteenth Amend- 
ment against slavery or involuntary servitude except as a punishment for 
crime, and that of Art. 1, § 9, to the passage of bills of attainder and 
ex post facto laws. These principles were not taken from the Spanish law ; 
they were carefully collated from our own Constitution, and embody 
almost verbatim the safeguards of that instrument for the protection of life 
and liberty. 

In interpreting the Constitution it must always be borne in mind that, 
while the intent of the framers of that instrument is important, as showing 
the meaning which they ascribed to it, the greatest weight must be given to 
the proceedings in the State Conventions ratifying the Constitution and to 
the first ten amendments which are, as already stated, in the nature of an 
authoritative and contemporaneous interpretation put upon the Constitution 
by three-fourths and more of the States in the exercise of their rights under 
the Constitution. It is believed that these principles of interpretation, con- 
stituting as they do a perfect canon of construction, have never been better 
stated than by Mr. Madison, who would have been supposed to be inclined 
to favor the views of the framers, because of his membership in the Con- 
vention and his authorship of the Notes in which their views are preserved, 
to the detriment of the authority of the State conventions. Thus, Mr. 
Madison said: 

But, after all, whatever veneration might be entertained for the body 
of men who formed our Constitution, the sense of that body could never 
be regarded as the oracular guide in expounding the Constitution. As the 
instrument came from them it was nothing more than the draft of a plan, 
nothing but a dead letter, until life and validity were breathed into it by 
the voice of the people, speaking through the several State Conventions. 
If we were to look, therefore, for the meaning of the instrument beyond 
the face of the instrument, we must look for it, not in the General Conven- 
tion, which proposed, but in the State Conventions, which accepted and 
ratified the Constitution.^ 

As a guide in expounding and applying the provisions of the Constitu- 
tion, the debates and incidental decisions of the Convention can have no 
authoritative character. However desirable it be that they should be pre- 

* James Madison in the House of Representatives. Annals of Congress, Fourth Con- 
gress, First Session, p. 776. 



332 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

served as a gratification to the laudable curiosity felt by every people to 
trace the origin and progress of their political Institutions, & as a source 
perhaps of some lights on the Science of Gov*, the legitimate meaning of 
the Instrument must be derived from the text itself ; or if a key is to be 
sought elsewhere, it must be not in the opinions or intentions of the Body 
which planned & proposed the Constitution, but in the sense attached to it 
by the people in their respective State Conventions where it rec<^. all the 
Authority which it possesses.^ 

I must say that the real measure of the powers meant to be granted to 
Congress by the Convention, as I understood and believe, is to be sought 
in the specifications, to be expounded indeed not with the strictness applied 
to an ordinary statute by a Court of Law; nor on the other hand with a 
latitude that under the name of means for carrying into execution a limited 
Government, would transform it into a Government without limits.^ 

And finally, in speaking of the difference of opinion between Colonel 
Hamilton, on the one side, and himself, on the other, Mr. Madison said, as 
reported by Mr. N. P. Trist in his Memoranda, under date of September 
27, 1834, but two years before Mr. Madison's death: 

In a word, the divergence between us took place — from his wishing to 
administration, or rather to administer the Government (these were Mr. 
M.'s very words), into what he thought it ought to be; while, on my part, 
I endeavored to make it conform to the Constitution as understood by the 
Convention that produced and recommended it, and particularly by the 
State conventions that adopted it.^ 

olfrcom" Perhaps the difficulties of forming the more perfect Union under the 

Constitution and of the influence which it was foreseen it might have upon 
the society of nations have never been better stated than by the two great 
members of the Convention, whose presence alone would have rendered that 
conference of the States illustrious. Thus, George Washington said in 
a letter dated November 16, 1787, addressed to Mrs. Macaulay Graham: 

The various and opposite interests which were to be conciliated, the 
local prejudices which were to be subdued, the diversity of opinions and 
sentiments which were to be reconciled, and, in fine, the sacrifices which 
were necessary to be made on all sides for the general welfare, combined 
to make it a work of so intricate and difficult a nature, that I think it is 
much to be wondered at, that any thing could have been produced with such 
unanimity as the constitution proposed.* 

Thus Benjamin Franklin wrote in a letter to Mr. Grand dated October 
22, 1787: 

* James Madison to Thomas Ritchie, September 15, 1821. Writings of Madison, Vol. ix, 
pp. 71-2, note. 

' James Madison to M. L. Hurlbert, May, 1830. Ibid., pp. 371-2. 

* H. S. Randall, Life of Thomas Jefferson, Vol. iii, p. 595. 

* Sparks, The Writings of Washington, Vol. ix, p. 283. 



GOVERNMENT SET UP! AMENDMENTS 333 

If it succeeds, I do not see why you might not in Europe carry the 
Project of good Henry the 4th into Execution, by forming a Federal Union 
and One Grand Republick of all its different States & Kingdoms, by means 
of a like Convention, for we had many Interests to reconcile.^ 

In an address on the United States Supreme Court and the sovereignty 
of the people, delivered in 1890, the late Mr. Edward John Phelps, a dis- 
tinguished lawyer of the United States, its Minister Plenipotentiary and 
Envoy Extraordinary to Great Britain and leading counsel before the 
Behring Sea Commission of 1893, finely said: "American experience has 
made it an axiom in political science that no written constitution of govern- 
ment can hope to stand without a paramount and independent tribunal 
to determine its construction and to enforce its precepts in the last resort. 
This is the great and foremost duty cast by the Constitution, for the sake 
of the Constitution, upon the Supreme Court of the United States." ^ 

The construction placed by the States of the Union upon the Constitu- 
tion would seem to indicate to the unprejudiced mind that at that time they 
regarded themselves as States, not provinces, entering into union, granting 
all powers to the Union of their creation which it could exercise, and reserv- 
ing to themselves the exercise of powers which they had not directly granted 
or which they had not granted by necessary implication, or whose exercise 
by themselves they had not renounced in the common good. The Supreme 
Court of the United States, which is the " paramount and independent tri- 
bunal," to quote Mr. Phelps' language, " to determine its construction," has 
repeatedly, in the hundred years and more following the institution of the 
Government under the Constitution, been called upon to interpret that 
charter of government in cases presented to it and properly involving its 
provisions, and it has, from its first to its last decision, spoken the uniform 
language of statesman and of jurist, irrespective of section or party. Thus, 
Mr. Justice Iredell said, in his dissenting opinion in the case of ChisJwlin The 
V. Georgia, (2 Dallas, 419, 435), decided in 1793, an opinion approved by °f,'he 
the 11th amendment to the Constitution of the United States: 

Every State in the Union, in every instance where its sovereignty has 
not been delegated to the United States, I consider to be as compleatly 
sovereign, as the United States are in respect to the powers surrendered. 
The United States are sovereign as to all the powers of Government 
actually surrendered : Each State in the Union is sovereign as to all the 
powers reserved. It must necessarily be so, because the United States have 
no claim to any authority but such as the States have surrendered to them: 
Of course the part not surrendered must remain as it did before. 

' A. H. Smyth, The Writings of Benjamin Franklin, Vol. ix, p. 619. 
' Phelps, Orations and Essays, pp. 58-9. 



The Division 



334 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

To the same effect, Mr. Justice Story said, in delivering the opinion of the 
Supreme Court in Martin v. Hunter (1 Wheaton, 304, 325-6), decided in 
1816: 

On the other hand, it is perfectly clear that the sovereign powers vested 
in the state governments, by their respective constitutions, remained unaltered 
and unimpaired, except so far as they were granted to the government of 
the United States. 

These deductions do not rest upon general reasoning, plain and obvious 
as they seem to be. They have been positively recognised by one of the 
articles in amendment of the constitution, which declares, that " the powers 
not delegated to the United States by the constitution, nor prohibited by it to 
the states, are reserved to the states respectively, or to the people." 

The government, then, of the United States can claim no powers which 
are not granted to it by the constitution, and the powers actually granted, 
must be such as are expressly given, or given by necessary implication. 

The great Chief Justice of the United States, John Marshall, said, in deliver- 
ing the unanimous opinion of his brethren of the court in McCulloch v. Mary- 
land (4 Wheaton, 316, 403, 410), decided in 1819: 

No political dreamer was ever wild enough to think of breaking down 
the lines which separate the States, and of compounding the American peo- 
of°Siweid^ pie into one common mass. Of consequence, when they act, they act in 

Powers their States. . . . 

In America, the powers of sovereignty are divided between the govern- 
ment of the Union, and those of the States. They are each sovereign, with 
respect to the objects committed to it, and neither sovereign with respect to 
the objects committed to the other. 

In a very much later case, when the Civil War might have seemed to the 
partisan to have changed the relation of the States to the Union and of the 
Union to the States, Mr. Chief Justice Chase said, in delivering the opinion 
of the court in Texas v. White (7 Wallace, 700, 725), decided in 1868, and 
involving this very relationship : 

Under the Articles of Confederation each State retained its sovereignty, 
freedom, and independence, and every power, jurisdiction, and right not ex- 
pressly delegated to the United States. Under the Constitution, though the 
powers of the States were much restricted, still, all powers not delegated 
to the United States, nor prohibited to the States, are reserved to the 
States respectively, or to the people. _ And we have already had occasion to 
remark at this term, that " the people of each State compose a State, having 
its own government, and endowed with all the functions essential to sepa- 
rate and independent existence," and that " without the States in union, 
there could be no such political body as the United States." Not only, 
therefore, can there be no loss of separate and independent autonomy to 
the States, through their union under the Constitution, but it may be not 
unreasonably said that the preservation of the States, and the maintenance 
of their governments, are as much within the design and care of the Con- 
stitution as the preservation of the Union and the maintenance of the Na- 



GOVERNMENT SET UP: AMENDMENTS 335 

tional Government. The Constitution, in all its provisions, looks to an inde- 
structible Union, composed of indestructible States. 

Two years later, in a case involving an act of Congress in excess of the Con- 
stitutional grant of power, afifecting an official of one of the States of the 
Union, and therefore the State, Mr. Justice Nelson, speaking for the court, 
said, in Collector v. Day (11 Wallace, 113, 124), decided in 1870: 

The general government, and the States, although both exist within the 
same territorial limits, are separate and distinct sovereignties, acting sepa- 
rately and independently of each other, within their respective spheres. The 
former in its appropriate sphere is supreme ; but the States within the limits 
of their powers not granted, or, in the language of the tenth amendment, 
" reserved," are as independent of the general government as that govern- 
ment within its sphere is independent of the States. 

And finally, Mr. Justice Brewer said more recently, in delivering the opinion 
of the court in South Carolina v. United States (199 U, S., 437, 448), de- 
cided in 1905 : 

We have in this Republic a dual system of government, National and 
state, each operating within the same territory and upon the same persons ; 
and yet working without collision, because their functions are different. 
There are certain matters over which the National Government has absolute 
control and no action of the State can interfere therewith, and there are 
others in which the State is supreme, and in respect to them the National 
Government is powerless. To preserve the even balance between these two 
governments and hold each in its separate sphere is the peculiar duty of all 
courts, preeminently of this — a duty oftentimes of great delicacy and diffi- 
culty. 

It is believed that the views of accredited publicists, and decisions of the 
Supreme Court, have been but as a gloss upon the views of Mr. Madison, 
expressed in a letter to Robert Y. Hayne, United States Senator from South 
Carolina, taking issue with the theory of the Constitution propounded by that 
gentleman. 

In the draft of this admirable letter dated April 3/4, 1830, Mr. Madison, 
who would doubtless be called the Father of the Constitution if his modesty 
had not forbidden it,^ who was, in any event, the best informed delegate in 
the Convention, and who afterward became a member of the Congress, Sec- 
retary of State, and President of the United States under the Constitution, 
wrote : 

It appears to me that in deciding on the character of the Constitution of 
the U. S. it is not sufficiently kept in view that being an unprecedented 

* " Your letter of the 18th Ult. was duly received. You give me a credit to which I 
have no claim, in calling me ' the writer of the Constitution of the U. S.' This was not, 
like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded 
as the work of many heads & many hands." Extract from letter of James Madison to 
William Cogswell, March 10, 1834, from the Madison MSS. in the Library of Congress. 
See also. The Writings of James Madison, Hunt, Editor, Vol. IX (1910), pp. 533-534. 



336 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

modification of the powers of Gov*, it must not be looked at thro' the refract- 
ing medium either of a consoHdated Government, or of a confederated Gov* ; 
that being essentially different from both, it must be its own interpreter 
according to its text and tJie facts of the case. 

Its characteristic peculiarities are 1. the mode of its formation. 2. its 
division of the supreme powers of Gov', between the States in their united 
capacity, and the States in their individual capacities. 

1. It was formed not by the Governments of the States as the Federal 
Government superseded by it was formed; nor by a majority of the people 
of the U. S. as a single Community, in the manner of a consolidated Gov- 
ernment. 

It was formed by the States, that is by the people of each State, acting 
in their highest sovereign capacity thro' Conventions representing them in 
that capacity, in like manner and by the same authority as the State Consti- 
tutions were formed ; with this characteristic & essential difference that the 
Constitution of the U. S. being a compact among the States that is the people 
thereof making them the parties to the compact over one people for specified 
objects can not be revoked or changed at the will of any State within its 
limits as the Constitution of a State may be changed at the will of the State, 
that is the people who compose the State & are the parties to its constitution 
& retained their powers over it. The idea of a compact between the Gov- 
ernors & the Governed was exploded with the Royal doctrine that Govern- 
ment was held by some tenure independent of the people. 

The Constitution of the U. S. is therefore within its prescribed sphere a 
Constitution in as strict a sense of the term as are the Constitutions of the 
individual States, within their respective spheres. 

2. And that it divides the supreme powers of Govt between the two 
Governments is seen on the face of it ; the powers of war & taxation, that 
is of the sword & the purse, of commerce of treaties &c. vested in the Govl 
of the U. S. being of as high a character as any of the powers reserved to 
the State Gov*! 

If we advert to the Gov* of the U. S. as created by the Constitution it is 
found also to be a Gov* in as strict a sense of the term, within the sphere of 
its powers, as the Govt^ created by the Constitutions of the States are within 
their respective spheres. It is like them organized into a Legislative, Execu- 
tive & Judicial Dep* It has, like them, acknowledged cases in which the 
powers of those Departments are to operate and the operation is to be the 
same in both; that is directly on the persons & things submitted to their 
power. The concurrent operation in certain cases is one of the features 
constituting the pecuHarity of the system. 

Between these two Constitutional Govt^, the one operating in all the 
States, the others operating in each respectively ; with the aggregate powers 
of Govt divided between them, it could not escape attention, that contro- 
versies concerning the boundary of Jurisdiction would arise, and that with- 
out some adequate provision for deciding them, conflicts of physical force 
might ensue. A political system that does not provide for a peaceable & 
authoritative termination of occurring controversies, can be but the name & 
shadow of a Govt the very object and end of a real GoA^t being the substi- 
tution of law & order for uncertainty confusion & violence. 

That a final decision of such controversies, if left to each of 13 State 
now 24 with a prospective increase, would make the Constitution & laws of 
the U. S. different in different States, was obvious ; and equally obvious that 



GOVERNMENT SET UP: AMENDMENTS 337 

this diversity of independent decisions must disorganize the Government 
of the Union, and even decompose the Union itself. 

Against such fatal consequences the Constitution undertakes to guard 
1. by declaring that the Constitution & laws of the States in their united 
capacity shall have effect, anything in the Constitution or laws of any State 
in its individual capacity to the contrary notwithstanding, by giving to the 
Judicial authority of the U. S. an appellate supremacy in all cases arising 
under the Constitution; & within the course of its functions, arrangements 
supposed to be justified by the necessity of the case ; and by the agency of 
the people & Legislatures of the States in electing & appointing the Func- 
tionaries of the Common Gov* whilst no corresponding relation existed be- 
tween the latter and the Functionaries of the States. 

2. Should these provisions be found notwithstanding the responsibility of 
the functionaries of the Govt of the U. S. to the Legislatures & people 
of the States not to secure the State Govt^ against usurpations of the Gov^ 
of the United States there remains within the purview of the Const" an 
impeachment of the Executive & Judicial Functionaries, in case of their 
participation in the guilt, the prosecution to depend on the Representatives 
of the people in one branch, and the trial on the Representatives of the States 
in the other branch of the Gov* of the U. S. 

3. The last resort within the purview of the Const"? is the process of 
amendment provided for by itself and to be executed by the States. 

Whether these provisions taken together be the best that might have 
been made ; and if not, what are the improvements, that ought to be intro- 
duced, are questions altogether distinct from the object presented by your 
communication, which relates to the Constitution as it stands. 

In the event of a failure of all these Constitutional resorts against 
usurpations and abuses of power and of an accumulation thereof rendering 
passive obedience & nonresistance a greater evil than resistance and revolu- 
tion, there can remain but one resort, the last of all, the appeal from the 
cancelled obligation of the Constitutional compact to original rights and the 
law of self-preservation. This is the Ultima ratio, under all Governments, 
whether consolidated, confederated, or partaking of both those characters. 
Nor can it be doubted that in such an extremity a single State would have a 
right, tho' it would be a natural not a constitutional Right to make the appeal. 
The same may be said indeed of particular portions of any political com- 
munity whatever so oppressed as to be driven to a choice between the 
alternative evils. . . .^ 

The Writings of James Madison, Hunt ed., Vol. ix, pp. 383-7. 



XVII 
THE NATURE OF JUDICIAL POWER 

What is judicial power? It will not do to answer that it is the power exercised by 
the courts, because one of the very things to be determined is what power they may exer- 
cise. It is, indeed, very difficult to find any exact definition made to hand. It is not to 
be found in any of the old treatises, or any of the old English authorities or judicial deci- 
sions, for a very obvious reason. While in a general way it may be true that they had 
this division between legislative and judicial power, yet their legislature was, neverthe- 
less, in the habit of exercising a very large part of the latter. The House of Lords was 
often the Court of Appeals, and Parliament was in the habit of passing bills of attainder 
as well as enacting convictions for treason and other crimes. 

Judicial power is, perhaps, better defined in some of the reports of our own courts 
than in any other place, and especially so in the Supreme Court of the United States, 
because it has more often been the subject of comment there, and its consideration more 
frequently necessary to the determination of questions arising in that court than anywhere 
else. It is the power of a court to decide and pronounce a judgment and carry it into 
effect between persons and parties who bring a case before it for decision. (_Mr. Justice 
Miller, Lectures on the Constitution of the United States, 1891, pp. 313-314.) 

As to what is meant by the phrase "judicial power," see Callanan v. Judd, 23 Wisconsin, 
343, 349. Also charge of Judge Nelson to grand jury of the Circuit Court, 1851, that it 
is the power conferred upon courts in the strict sense of that term; courts that compose 
one of the great departments of the government; and not power judicial in its nature, or 
quasi judicial, invested from time to time in individuals, separately or collectively, for a 
particular purpose and limited time. 1 Blatchford, 635. Gilbert v. Priest, 65 Barb. 444, 
448. {Mr. Justice Miller, Lectures on the Constitution of the United States, J8gi, p. 313, 
note.) 

It appears in our books, that in many cases, the common law will controul Acts of 
Parliament, and sometimes adjudge them to be utterly void: . . . (Lord Chief Justice 
Coke, in Doctor Bonham's Case, 8 Co. R-ep. 113b, iiSa, d-ecided in 1610, English Reports, 
Full Reprint, Vol. LXXVJI, King's Bench Division, VI, 1907, p. 652.) 

Even an Act of Parliament, made against natural equity, as to make a man Judge in 
his own case, is void in it self, for jura naturje sunt immutabilia, and they are leges legum. 
(Lord Chief Justice Hobart in Day v. Savadge, Hobart 85, 87, decided in 1615, English 
Reports, Full Reprint, Vol. LXXX, King's Bench Division, IX, 1907, p. 237.) 

And what my Lord Coke says in Dr. Bonham's case in his 8 Co. is far from any extrav- 
agancy, for it is a very reasonable and true saying, that if an Act of Parliament should ordain 
that the same person should be party and Judge, or, which is the same thing. Judge in his 
own cause, it would be a void Act of Parliament; . . (Lord Chief Justice Holt, in The 
City of London v. Wood, 12 Mod. 669, 687-688, decided in 1702, English Reports, Full 
Reprint, Vol. LXXXVIII, King's Bench Division, XVII, 1908, p. 1602.) 

The great and chief End therefore, of Mens uniting into Commonwealths, and putting 
themselves under Government, is the Preservation of their Property. To which in the 
state of Nature there are many things wanting. 

First, There wants an establish'd, settled, known Law, received and allowed by common 
Consent to be the Standard of right and wrong, and the common Measure to decide all 
Controversies between them. For though the Law of Nature be plain and intelligible to 
all rational Creatures; yet Men being biassed by their Interest, as well as ignorant for 
want of Study of it, are not apt to allow of it as a Law binding to them in the application 
of it to their particular Cases. 

338 



THE NATURE OF JUDICIAL POWER 339 

Secondly, In the state of Nature there wants a known and indifferent Judge, with 
Authority to determine all Differences according to the established Law. For every one 
in that State being both Judge and Executioner of the Law of Nature, Men being partial 
to themselves, Passion and Revenge is very apt to carry them too far, and with too much 
Heat, in their own Cases ; as well as Negligence, and unconcernedness, to make them too 
remiss in others Mens. 

Thirdly, In the state of Nature there often wants Power to back and support the 
Sentence when right, and to give it due Ex-ecution. They who by any Injustice offended, 
will seldom fail, where they are able, by Force to make good their Injustice; such 
■Resistance many times makes the Punishment dangerous, and frequently destructive, to 
those who attempt it. {John Locke, Two Treatises of Government, 1690, Book II, Ch. IX, 
Sections 124-126, Works, Edition of 17 14, Vol. J J.) 

This writ is against the fundamental principles of law. . . . 

As to Acts of Parliament. An act against the Constitution is void ; an act against 
natural equity is void; and if an act of Parliament should be made, in the very words 
of this petition, it would be void. The executive Courts must pass such acts into disuse. 

8 Rep. 118 from Viner Reason of the common law to control an act of Parliament. 
Iron manufacture. Noble Lord's proposal, that we should send our horses to England to 
be shod. . . . {Argument of James Otis in Paxton's Case on Writs of Assistance, 1761, 
Works of John Adams, Vol. 2, 1850, pp. 521-522.) 

The law was laid down in the same way, on the authority of the above cases, in 
Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 1741-51, 
from which Otis quoted it; and in Comyn's Digest, published 1762-7, but written more 
than twenty years before. And there are older authorities to the same effect. So that 
at the time of Otis's agreement his position appeared to be supported by some of the highest 
authorities in the English law. 

The same doctrine was repeatedly asserted by Otis, and was a favorite in the Colonies 
before the Revolution. There are later dicta of many eminent judges to the effect that a 
statute may be void as exceeding the just limits of legislative power; but it is believed 
there is no instance, except one case in South Carolina, in which an act of the Legislature 
has been set aside by the courts, except for conflict with some written constitutional 
provision. 

The reduction of the fundamental principles of government in the American States to 
the form of written constitutions, established by the people themselves, and beyond the 
control of their representatives, necessarily obliged the judicial department, in case of 
a conflict between a constitutional provision and a legislative act, to obey the Constitution 
as the fundamental law and disregard the statute. This duty was recognized, and unconsti- 
tutional acts set aside, by courts of justice, even before the adoption of the Constitution 
of the United States. Since the ratification of that Constitution the power of the courts 
to declare unconstitutional statutes void has become too well settled to require an accumu- 
lation of authorities. But as the office of the judiciary is to decide particular cases, and 
not to issue general edicts, only so much of a statute is to be declared void as is repugnant 
to the Constitution and covers the case before the court, unless the constitutional and 
unconstitutional provisions are so interwoven as to convince the court that the legislature 
would not have passed the one without the other. (Mr. Justice Gray, Were the Writs of 
Assistance Legal, 1865, in Quincy, Massachusetts Reports, 1761-1772, Appendix i, pp. 
5^6-530.) 

Judicial power, as contradistinguished from the power of the laws, has no existence. 
Courts are the mere instruments of the law, and can will nothing. When they are said 
to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discern- 
ing the course prescribed by law; and, when that is discerned, it is the duty of the court 
to_ follow it. Judicial power is never exercised for the purpose of giving effect to the 
will of the judge; always for the purpose of giving effect to the will of the legislature; 
or, in other words, to the will of the law. (Chief Justice Marshall in Osborn v. United 
States Bank, 9 Wheat on, 738, 866, decided in 1824.) 

The judicial power mentioned in the constitution, and vested in the courts, means the 
power conferred upon courts ordained and established by and under the constitution, in 
the strict and ^ippropriate sense of that term— courts that compose one of the three great 
departments of the government prescribed by the fundamental law, the same as the other 
two, the legislative and the executive. (Mr. Justice Nelson on The Fugitive Slave Law, 
I Blatchford, Appendix, p. 644, decided in 1851.) 



340 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

The award of execution is a part, and an essential part of every judgment passed by a 
court exercising judicial power. It is no judgment, in the legal sense of the term, with- 
out it. Without such an award the judgment would be inoperative and nugatory, leaving 
the aggrieved party without a remedy. {Chief Justice Taney in Gordon v. United States, 
117 United States, 697, 702, decided in 1864.) 

In the Constitution are provisions in separate articles for the three great departments 
of government- — legislative, executive and judicial. But there is this significant difference 
in the grants of powers to these departments : The first article, treating of legislative 
powers, does not make a general grant of legislative power. ... By reason of the fact 
that there is no general grant of legislative power it has become an accepted constitutional 
rule that this is a government of enumerated powers. . . . 

On the other hand, in Article III, which treats of the judicial department ... we 
find that section 1 reads that "the judicial power of the United States, shall be vested 
in one Supreme Court, and in such inferior courts as the Congress may from time to time 
ordain and establish." By this is granted the entire judicial power of the Nation. . . . 

Speaking generally, it may be observed that the judicial power of a nation extends to 
all controversies justiciable in their nature, the parties to which or the property involved in 
which may be reached by judicial process, and when the judicial power of the United 
States was vested in the Supreme and other courts all the judicial power which the Nation 
was capable of exercising was vested in those tribunals, and unless there be some limita- 
tions expressed in the Constitution it must be held to embrace all controversies of a 
justiciable nature arising within the territorial limits of the Nation, no matter who may 
be the parties thereto. (Mr. Justice Brewer in Kansas v. Colorado, 206 United States, 46, 
81-83. decided in 1907.) 



CHAPTER XVII 

THE NATURE OF JUDICIAL POWER 

As heretofore suggested, the statesmen of the Constitutional Convention i^i^^ace of 
appear to have read and deeply pondered Montesquieu's Spirit of the Laws, M°"tesquieu 
and the great and conscious division of the more perfect Union into three 
departments appears to be due largely to Montesquieu's influence and to be 
traceable to the Spirit of the Laws, and more especially to the following 
passage : 

When the legislative and executive powers are united in the same per- 
son, or in the same body of magistrates, there can be no liberty ; because 
apprehensions may arise, lest the same monarch or senate should enact 
tyrannical laws, to execute them in a tyrannical manner. 

Again, there is no liberty, if the power of judging be not separated from 
the legislative and executive powers. Were it joined with the legislative, 
the life and liberty of the subject would be exposed to arbitrary controul ; for 
the judge would be then the legislator. Were it joined to the executive 
power, the judge might behave with all the violence of an oppressor. 

There would be an end of every thing, were the same man, or the same 
body, whether of the nobles or of the people, to exercise those three powers, 
that of enacting laws, that of executing the public resolutions, and that of 
judging the crimes or differences of individuals.^ 

The Articles of Confederation created a union intended to be perpetual; 
but it contented itself with an association of the States, without creating 
an agency to make that association effective, even for the specified purposes. 
The Congress was the legislative department, but its acts were in the nature 
of recommendations, rather than laws in the ordinary sense of the word. 
There was no executive department, unless the Congress is to be considered 
an executive, which, however, could not carry into effect the laws which it 
enacted. There was no Judiciary, although the ninth of the Articles of 
Confederation authorized and the Congress in fact did establish a Court of 
Appeal for prize cases, which, as we have seen in the famous case of The 
Active, overruled a decision of the Pennsylvania prize court, a form of judi- 
ciary which was, however, unable to carry its decision into effect. The same 
article, recognizing the necessity of judicial settlement of disputes between 

■ Montesquieu, The Spirit of Laws, English translation, 1756, Vol. I, Book XI, Chap VI, 
p. 165. 



342 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Limitation 
of Powers 



Congress defines 
Extent but 
not Nature 
of the Court's 
Power 



the States, provided a method by which temporary commissions should be 
created, coming into being for a special dispute and going out of existence 
with its decision. But of a real judiciary there was nothing. 

The advocates of a more perfect Union foresaw that it could not be perma- 
nent, unless it was organized upon a broader basis, and unless the Union of 
the States was provided with appropriate agencies to carry into effect the 
sovereign powers, of which the States divested themselves in the common 
interest while reserving the exercise of all other sovereign powers which they 
did not grant to the agency they were creating, or otherwise divest them- 
selves of. 

Recognizing the need of the three departments of government, the 
necessity of their separation, as advocated by Montesquieu, and the neces- 
sity likewise of their equality, springing from their separation, the framers 
of the Constitution created a legislative, executive and judiciary department. 
As the Government of the United States was one of limited powers, it neces- 
sarily followed that the legislature would be limited, but nevertheless com- 
petent to carry into effect the powers directly or impliedly granted to the 
United States. The first article of the Constitution, while creating a Con- 
gress, does not vest it with legislative power in general, but with "all the 
legislative powers herein granted." In the same manner the executive power 
was vested in a President of the United States of America, whose powers 
were likewise limited, inasmuch as he could only execute the powers vested 
in the United States which were expressly or impliedly granted; and the 
origin, nature and source of the power and authority of the President are, 
as stated in the oath of office, to execute the office of President and, to 
the best of his ability, " preserve, protect, and defend the Constitution of the 
United States." 

The third article of the Constitution, for each of these divisions is cov- 
ered by an article, and in this order, vests "the judicial power of the United 
States " in a Supreme Court and such inferior courts as Congress may from 
time to time ordain and establish. As in the previous cases, this can only 
mean the judicial power necessarily or impliedly granted to the United States, 
but since the Supreme Court was a new institution and as judicial power, in 
the sense in which it was here used, was and unfortunately still is a novelty 
in the older world, the Congress defined its extent, although it did not attempt 
to define its nature. The judiciary, while coextensive with the legislative 
and executive departments is, like each of them, limited in extent if not in 
nature. In the case of Kilbourn v. Thompson (103 U. S. 168, 190), decided 
in 1880, Mr. Justice Miller, speaking for the court said: 



It is believed to be one of the chief merits of the American system of 
written constitutional law, that all the powers intrusted to government, 
whether State or national, are divided into the three grand departments, the 



THE NATURE OF JUDICIAL POWER 343 

executive, the legislative, and the judicial. That the functions appropriate to 
each of these branches of government shall be vested in a separate body of 
public servants, and'that the perfection of the system requires that the lines 
which separate and divide these departments shall be broadly and clearly 
defined. It is also essential to the successful working of this system that the 
persons intrusted with power in any one of these branches shall not be per- 
mitted to encroach upon the powers confided to the others, but that each 
shall by the law of its creation be limited to the exercise of the powers 
appropriate to its own department and no other. 

What is judicial power? This question Mr. Justice Miller puts in his 
" Lectures on the Constitution of the United States; " and, after commenting 
upon its difficulty, proceeds to answer it by a reference to decisions of the ^^^'^j*' 
Supreme Court of the United States. " It will not do," he says, " to answer court*^ ^^ 
that it is the power exercised by the courts, because one of the very things ^'*^^ 
to be determined is what power they may exercise. It is, indeed, very diffi- 
cult to find any exact definition made to hand 

"Judicial power is, perhaps, better defined in some of the reports 
of our own courts than in any other place, and especially so in the Supreme 
Court of the United States, because it has more often been the subject of 
comment there, and its consideration more frequently necessary to the deter- 
mination of questions arising in that court than anywhere else. It is the 
power of a court to decide and pronounce a judgment and carry it into effect 
between persons and parties who bring a case before it for decision." ^ 

In this connection, however, we must not forget that the first English influence of 

° ° English 

colonists brought with them the common law of England, that the British Common Law 

plantations in America were therefore familiar with the principles of the 

common law, and that the statesmen who framed the Constitution were born 

and bred in it. To the common law, therefore, we must look for the nature 

of judicial power, just as we look to the Constitution for its extent. It is 

common knowledge that the first Englishman to set his foot upon the New 

World brought with him the rights and privileges of Englishmen and the 

law by which they were defined, interpreted and protected, and it would be 

a cheap display of learning to quote authority for the position that the law 

in force in England before the Declaration of Independence was, in as far 

as it was applicable to the colonies, binding upon them as bodies politic and 

upon the colonists as English subjects. We should expect, therefore, to 

find that the settlers understood judicial power in the sense in which it was 

understood in the mother country and that the statesmen of the Revolution 

and the f ramers of the Constitution used the expression " judicial power " 

in the sense in which it was used in the jurisprudence of the old country, 

except in so far as the meaning attached to that expression in the English 

system was consciously modified or departed from. 

' S. F. Miller, Lectures on the Constitution of the United States, 1893, pp. 313, 314. 



344 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

It is therefore enlightening as well as instructive to examine a few Eng- 
lish cases dealing with the nature of judicial power, for by so doing we not 
only obtain an insight into the subject and enable ourselves to understand 
the state of mind of the framers of the Constitution, but to comprehend how 
the Supreme Court of the United States, without the express and literal 
authority of the Constitution, has naturally and inevitably passed upon the 
constitutionality of federal as well as State legislation. 
English A very interesting and early case, to be found in Professor Wambaugh's 

°" t''? Cases on Constitutional Law (from which these examples are taken), was 

Pow^' the subject of discussion in 1460 and is known as the Duke of York's claim 

to the Crown.^ Without going into details, it is sufficient for present pur- 
poses to state that the Duke of York claimed the English Crown, and by his 
counsel presented his claim in writing to the Lord Chancellor, with the request 
that it be laid by him before the Lords spiritual and temporal of the then 
Parliament, and " that the said Duke might have brief and expedient answer 
thereof." The Lords spiritual and temporal were much troubled, and in the 
end they sent for the King's Justices " to have their advice and counsel in 
this behalf, and there delivered to them the writing of the claim of the said 
Duke, and in the King's name gave them strictly in commandment, sadly to 
take advisement therein, and to search and find all such objections as might 
be laid against the same, in fortifying the King's right." Apparently, the 
Justices were also much troubled by this request, for, when summoned before 
the Lords spiritual and temporal for answer, they said: 

That they were the Kyngs Justices, and have to determyne such maters 
as com before theym in the lawe, betwene partie and partie, and in such 
maters as been betwene partie and partie, they may not be of Counseill ; and 
sith this mater was betwene the Kyng and the seid Due of York as two 
parties, and also it hath not be accustumed to calle the Justices to Counseill 
in such maters .... they humble bysought all the Lordes, to have theym 
utterly excused of eny avyce or Counseill, by theym to be yeven in that 
matier.2 

In Clark's Case (5 Coke's Reports, 64a), decided in 1596, it appeared that 
the town of St. Albans, with the assent of the plaintiff and other burgesses 
" did assess a sum on every inhabitant for the charges in erecting the courts 
there; and ordained, that if any should refuse to pay, &c. that he should be 
imprisoned." The Court of Common Pleas held, however, that the ordinance 
to this effect was null, as contrary to the Magna Charta, Chapter 29, pro- 
viding that nullus liber homo imprisonetur. The court also held that the 
consent of the plaintiff could not enable it to take jurisdiction forbidden by 

* Eugene Wambaugh, A Selection of Cases on Constitutional Law, 1914, Book i, pp. 1-3. 
' 5 Rotuli Parliament orum, 375-6. 



THE NATURE OF JUDICIAL POWER 345 

law, and that, while the corporation of St. Albans could not impose imprison- 
ment for a failure to pay the charge, as this was contrary to the statute, it 
might very properly have imposed a penalty or a fine. 

A few years later, in 1607, a very interesting case arose, entitled Pro- 
hibitions Del Roy (12 Coke's Reports, 63, 65), which involved the question 
whether James I as King of England could himself administer justice be- 
tween party and party, or whether law or justice, being the exercise of 
judicial power, could only be administered by the court. The question was 
one of such importance that all the Judges of England and Barons of Ex- 
chequer were summoned before his Majesty, and Sir Edward Coke, then 
Chief Justice of the Common Pleas, spoke on behalf and with the consent of 
the judges, denying the claim of the King to dispense justice in the concrete 
case. The question involved in this dispute between the King and the court is 
so material to the functions of a court, and so clearly states the necessity of 
independence on the part of judges, as to deserve quotation. After the state- 
ment of Lord Coke that, although justice is administered in the name of the 
King, the judgment is nevertheless reached and delivered by the judges of the 
court, sworn to execute justice according to the law and custom of England, 
the King said, as reported by his Lordship, " He thought the law was 
founded upon reason, and that he and others had reason, as well as the 
Judges." To which the Chief Justice answered: 

True it was, that God had endowed his Majesty with excellent science, 
and great endowments of nature; but His Majesty was not learned in the 
laws of his realm of England, and causes which concern the life, or inherit- 
ance, or goods, or fortunes of his subjects, are not to be decided by natural 
reason but by the artificial reason and judgment of law, which law is an 
act which requires long study and experience, before that a man can attain to 
the cognizance of it : and that the law was the golden met-wand and measure 
to try the causes of the subjects; and which protected his Majesty in safety 
and peace: with which the King was greatly offended, and said, that then 
he should be under the law, which was treason to affirm, as he said ; to 
which I said, that Bracton saith, quod Rex non debet esse sub homine, sed 
sub Deo et lege. 

This solemn opinion of the judges, given under these trying circumstances, 
denying the judicial power to the executive, was not a deterrent to a man of 
King James' type, who not only claimed the power to interpret the law but to 
make that law which he claimed the right to interpret. In the matter of 
Proclamations (12 Coke's Reports, 74—6), which was argued before the Privy 
Council in 1610, Lord Chief Justice Coke again came into collision with his 
Majesty, who claimed the right to prohibit new buildings in and about Lon- 
don, and likewise by proclamation to prohibit the making of starch out of 
wheat. As these acts on the part of his Majesty were regarded as grievances 



346 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

and against law and justice, the King conferred with his Privy Council and 
his judges. Lord Coke again expressed his opinion as became a judge, 
saying squarely that "the King cannot change any part of the common law, 
nor create any offence by his proclamation, which was not an offence before, 
without Parliament." But, recognizing the importance of the question, Lord 
Coke asked " to have a time of consideration and conference " with his 
brethren, a request which was reluctantly granted. The result of the con- 
sideration and conference is thus reported by Coke himself : 

In the same term it was resolved by the two Chief Justices, Chief Baron, 
and Baron Altham, upon conference betwixt the Lords of the Privy Council 
and them, that the King by his proclamation cannot create any offence which 
was not an offence before, for then he may alter .the law of the land by his 
proclamation in a high point ; for if he may create an offence where none is, 
upon that ensues fine and imprisonment ; also the law of England is divided 
into three parts, common law, statute law, and custom; but the King's 
proclamation is none of them. 

It is believed that these cases, tried and decided before an English colony 
had been firmly planted in America, show that the conception of judicial 
power, as it was later to obtain in America, was already well understood in 
the mother country, and that, because of that fact, it was bound to prevail in 
the English speaking portion of the New World. Before considering the 
American cases dealing with this subject, it is advisable to refer to two further 
English cases, decided after the establishment of the American colonies, but 
before the Declaration of Independence. 

The first case is Rex v. Cutbicsh (4 Burrow, 2204, 2208), decided by 
the King's Bench in 1768. This was upon what is called an information, in 
the nature of a quo warranto, brought against the defendant to show by 
what warrant he claimed to be a common councilman of Maidstone. It ap- 
pears that Maidstone was incorporated in the twenty-first year of King 
George II, under the name of " the mayor, jurats, and commonalty of the 
King's town and parish of Maidstone in the county of Kent," the charter of 
incorporation providing that thirteen of the inhabitants should be chosen 
Jurats and one of the Jurats Mayor, and that forty of the remaining prin- 
cipal inhabitants should be chosen as the Common Council of the said 
town and parish. On the plea that the Commonalty of Maidstone was 
very numerous, and that an admission of them to vote in the election of 
a common councilman had been found by experience to occasion divers 
riots, disorders, and great popular confusion, the Mayor, Jurats and Com- 
mon Council made a by-law providing that, in lieu of election by 
the Commonalty, the Common Councilmen should be elected by the pres- 
ent members thereof and sixty others, who, at the time of the election, 



THE NATURE OF JUDICIAL POWER 347 

should be the senior common freemen of the said town and parish of 
Maidstone as they should stand in order and place of seniority upon the 
books of admission of freemen of the said town and parish. The defendant, 
Cutbush, was elected a common councilman pursuant to this by-law. If the 
by-law was valid, he was properly elected; if the by-law was inconsistent 
with the charter of incorporation, he was then illegally elected and not entitled 
to hold the office. The court was unanimously of the opinion that the by-law 
was bad, that it was contrary to the intention of the charter, Lord Chief Jus- 
tice Mansfield saying: 

It is made by a part of the corporation, to deprive the rest of their right 
to elect, without their consent. The charter gives this right to the whole 
body of the commonalty ; the by-law confines it to a narrow compass of the 
sixty seniors only. This expressly contradicts the charter. 

Mr, Justice Yates concurred with Lord Mansfield, and added that: 

Where a corporation is by charter, and the common-council is created 
by the charter, they ought (as being the creature of the charter) to be re- 
strained from making any by-laws inconsistent with it, or counteracting the 
end, intentions and directions of it. 

The second of these cases is Campbell v. Hill (Cowper, 204, 212, 213), 
decided by the King's Bench in 1774, upon the eve of the American Revolu- 
tion. For present purposes, it is sufficient to say that the Island of Grenada 
had been captured from the French and ceded to Great Britain by the treaty 
of February 10, 1763; that by proclamations of King George III dated Octo- 
ber 7, 1763, and April 9, 1764, the Crown empowered the Governor, as soon 
as the state of the Island should permit, to summon a General Assembly in the 
manner used in the colonies and provinces of America; and that such assem- 
blies should make laws with the consent of the Governor and Council. After 
the issuance of the proclamation of October 7, 1763, the King issued a 
further proclamation, laying an export duty of 4% per cent upon all of the 
commodities produced in the Island. The defendant collected the duties from 
the plaintiff, who sued in an action of money had and received, to recover the 
amount of the export duties which he had been obliged to pay. The question 
was whether the King could, by a later proclamation, lay an export tax upon 
the produce of the Island when, by the earlier proclamation of October 7, 
1763, he had, to quote Lord Mansfield's language, "precluded himself from 
the exercise of a legislative authority over the island of Grenada." On this 
point the court was unanimous, holding that " the King had immediately and 
irrevocably granted to all who were or should become inhabitants, or who 
had, or should acquire property in the Island of Grenada, or more generally 



348 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to all whom it might concern, that the subordinate legislation over the island 
should be exercised by an assembly with the consent of the governor and 
council, in like manner as the other islands belonging to the king." As in 
the case of Rex v. Cuthush, where we have the judicial power declaring the 
by-law of the parish of Maidstone void as inconsistent with the charter of 
incorporation, that is to say, the judicial power setting aside an act of the 
legislature (in this case a corporation) inconsistent with the grant, so in the 
case of Campbell v. Hall, we have the judicial power taking jurisdiction of 
an act of the executive and declaring it inconsistent with the law of the land. 

We are now prepared to consider a leading case of colonial times, in 
which the judicial power of the mother country set" aside an act of the 
colonial legislature of Connecticut and a judgment of the Connecticut Court 
of Probate organized under the charter of the colony, as the act and the 
judgment were in excess of the power granted by the charter. The case of 
Winthrop v. Lechmere (7 Connecticut Colonial Records, 571), decided by 
the Privy Council in 1728, involved the validity of an act of the colonial 
legislature, providing that, in the case of a person dying intestate, the realty 
should descend to the male and female children of the deceased, and that the 
male should receive a double portion, contrary to the law of descent in Eng- 
land, which, in such a case, vested all the realty in the male to the exclusion 
of the female. From the decision of the Connecticut Court, distributing the 
property according to the colonial statute, the male child, one Winthrop, son 
of the deceased intestate, appealed to the King in Council to admit an appeal, 
which had been disallowed by the Connecticut authorities. The appeal was 
granted and the appeal was referred to the Committee for Hearing Appeals 
from the Plantations. The question was elaborately argued for the appellant 
by Sir Philip Yorke, then Attorney General, later Lord Chancellor Hard- 
wicke, and Sir Charles Talbot, then Solicitor General and later Lord Chan- 
cellor Talbot, with the result that the Committee for Hearing Appeals from 
the Plantations advised his Majesty " that the said act for the settlement of 
Intestate Estates should be declared null and void, being contrary to the 
laws of England, in regard it makes lands of inheritances distributable as 
personal estates, and is not warranted by the charter of that Colony." We 
here have the act of a legislature of a body politic, a colony, and later to be a 
State of the American Union under this very charter, set aside as null and 
void by a committee exercising judicial powers. 

We are justified in saying that, before the outbreak of the American 
Revolution, the lawyers and statesmen of England as well as of the colonies 
were familiar with that conception of judicial power, by virtue of which it 
refused, as in the case of the Duke of York's claim, to pass upon a political 
question; by virtue of which it denied to the executive the right to administer 



THE NATURE OF JUDICIAL POWER 349 

justice between parties litigant and the right to issue proclamations, decree 
prohibitions inconsistent with the law, or to make law; and by virtue of which 
a by-law of an incorporated town and an act of the legislature of a colony 
were held by the judicial power to be in excess of the grant of power con- 
tained in the charter. 

These are English precedents, with which the lawyers of the colonies were American 
familiar, or of which they were ignorant at their peril. We have, however, ^^^^ 
an American case, decided in 1780, one year before the Articles of Con- 
federation creating the Confederacy went into operation, and by the Chief 
Justice of the court, a framer of the more perfect Union, participating in 
the trial and disposition of the case. In Holmes v. Walton,'^ for this is the 
case to which reference has been made, it appeared that one Walton, acting 
under a statute of the State of New Jersey passed October 8, 1778, seized 
goods in the possession of Holmes and Ketcham which had been brought into 
the American lines from a place in possession of the British, and, in con- 
formity with the statute, Walton took the goods before a Justice of the Peace. 
And, still acting under the statute,, which required the Justice to grant a jury 
of six men upon the demand of either party and forbade an appeal in case of 
verdict, a jury of six was appointed, a verdict thereof given in favor of Wal- 
ton and judgment entered accordingly in his favor. Notwithstanding the 
inhibition of the statute, the defendant appealed to the Supreme Court of New 
Jersey, invoking in his behalf section XXII of the Constitution of New Jersey, 
adopted July 2, 1776, providing "that the inestimable right of trial by jury PasJ*o?" 
shall remain confirmed as a part of the law of this colony, without repeal for- ai°"y o" '°°' 
ever," and calling attention to the fact that the verdict of the jury upon which ac!'^^'"^ 
judgment was rendered consisted of six men only, when, " by the laws of the 
land it should have consisted of twelve men." As a jury of six was unknown 
to the common law, the defendant insisted that the verdict be set aside. The 
case was one in which the feeling of the community was with the plaintiff 
below, who had seized goods found in possession of the British and brought 
them within the American lines. The court apparently was in doubt, so that 
it took time to consider, but on September 7, 1780, in the presence of all 
the judges (among them David Brearley, Chief Justice, and later a delegate 
of his State to the Constitutional Convention), the following mandate was 
entered : 

This cause having been argued several terms past and the court having 
taken time to consider the same, and being now ready to deliver their opinion, 
gave the same seriation for the plaintiffs in certiorari. And on motion of 
Boudinot for the plaintiffs, judgment is ordered for the plaintiffs, and that 
the judgment of the justice in the court below be reversed. . . .^ 

*The American Historical Review, Vol. IV, pp. 456-69 (April, 1899). 
• Wambaugh, Ccises, Book I, p. 22. 



350 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

It was natural, therefore, that the framers of the Constitution should 
regard as a proper exercise of the judicial power a decree of a court setting 
aside an act of the Congress of the United States, or a provision of the 
constitution of a State, or an act of its legislature or of the executive depart- 
ment as inconsistent with the grant of power in the Constitution of the 
United States. 
Extra- Continuing what may be called the general phase of the subject, there are 

judicial . . . °. \ . , , . 

Duties instructive instances oi an attempt to invest judges with the performance 

of other than judicial duties, which bring into prominence the essence of 
judicial power and of judicial duty under the constitutional grant. Shortly 
after the government was organized under the present Constitution, on 
March 4, 1789, an act of Congress was passed " to provide for the settle- 
ment of the Claims of Widows and Orphans barred by the limitations hereto- 
fore established, and to regulate the Claims to Invalid Pensions." ^ The 
duty to determine these claims was assigned to the Circuit Courts of the 
United States, organized in pursuance of the judiciary act of September 25, 
1789. Each of the three Circuit Courts, into which the United States Avas 
divided, considered the question, and, although deeply interested in the pur- 
pose of the act and desirous of complying with it, insofar as the limits of 
judicial power would permit them to do so, the judges stated it to be their 
opinion that the duty imposed by the act was inconsistent with judicial 
power, and that therefore the court could not, and that the judges should not, 
comply with it. The Circuit Court for the District of New York, consisting 
of Jay, Chief Justice, Cushing, Justice, and Duane, District Judge, stated that 
the judges of the Circuit were unanimously of the opinion: 

That by the Constitution of the United States, the government thereof 
is divided into tliree distinct and independent branches, and that it is the 
duty of each to abstain from, and to oppose, encroachments on either. 

That neither the Legislative nor the Executive branches, can constitu- 
tionally assign to the Judicial any duties, but such as are properly judicial, 
and to be performed in a judicial manner. 

That the duties assigned to the Circuit courts, by this act, are not of that 
description, and that the act itself does not appear to contemplate them as 
such ; in as much as it subjects the decisions of these courts, made pursuant 
to those duties, first to the consideration and suspension of the Secretary at 
War, and then to the revision of the Legislature; whereas by the Constitu- 
tion, neither the Secretary at War, nor any other Executive officer, nor even 
the Legislature, are authorized to sit as a court of errors on the judicial 
acts or opinions of this court.^ 

The Circuit Court for the District of Pennsylvania, consisting of Wilson 
and Blair, Justices, and Peters, District Judge, made the following repre- 

* 1 Statutes at Large, 243. 
'Hayburn's Case, 2 Dallas, 410, Note. 



THE NATURE OF JUDICIAL POWER 351 

sentation to the President of the United States in a letter dated April 
18, 1792: 

To you it officially belongs to " take care that the laws " of the United 
States " be faithfully executed." Before you, therefore, we think it our 
duty to lay the sentiments, which, on a late painful occasion, governed us 
with regard to an act passed by the legislature of the Union. 

The people of the United States have vested in Congress all legislative 
powers " granted in the constitution." 

They have vested in one Supreme court, and in such inferior courts as 
the Congress shall establish, " the judicial power of the United States." . . . 

This Constitution is " the Supreme Law of the Land." This supreme 
law " all judicial officers of the United States are bound, by oath or affirma- 
tion, to support." 

It is a principle important to freedom, that in government, the judicial 
should be distinct from, and independent of, the legislative department. 
To this important principle the people of the United States, in forming their 
Constitution, have manifested the highest regard. 

They have placed their judicial power not in Congress, but in " courts." 
They have ordained that the " Judges of those courts shall hold their offices 
during good behaviour," and that " during their continuance in office, their 
salaries shall not be diminished." 

Congress have lately passed an act, to regulate, among other things, 
" the claims to invalid pensions." 

Upon due consideration, we have been unanimously of opinion, that, 
under this act, the Circuit court held for the Pennsylvania district could not 
proceed ; 

1st. Because the business directed by this act is not of a judicial nature. 
It forms no part of the power vested by the Constitution in the courts of the 
United States ; the Circuit court must, consequently, have proceeded without 
constitutional authority. 

2d. Because, if, upon that business, the court had proceeded, its judg- 
ments (for its opinions are its judgments) might, under the same act, have 
been revised and controuled by the legislature, and by an officer in the 
executive department. Such revision and controul we deemed radically 
inconsistent with the independence of that judicial power which is vested in 
the courts ; and, consequently, with that important principle which is so 
strictly observed by the Constitution of the United States.^ 

The Circuit Court for the District of North Carolina, consisting of Ire- 
dell, Justice, and Sitgreaves, District Judge, thus addressed the President of 
the United States on June 8, 1792 : 

1. That the Legislative, Executive, and Judicial departments, are each 
formed in a separate and independent manner ; and that the ultimate basis of 
each is the Constitution only, within the limits of which each department can 
alone justify any act of authority. 

2. That the Legislature, among other important powers, unquestionably 
possess that of establishing courts in such a manner as to their wisdom 

12 Dallas, 411, Note. For the facts of the "painful occasion" referred to above, see 
post, p. 365. 



352 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

shall appear best, limited by the terms of the constitution only; and to 
whatever extent that power may be exercised, or however severe the duty 
they may think proper to require, the Judges, when appointed in virtue of 
any such establishment, owe implicit and unreserved obedience to it. 

3. That at the same time such courts cannot be warranted, as we con- 
ceive, by virtue of that part of the Constitution delegating Judicial power, 
for the exercise of which any act of the legislature is provided, in exercising 
(even under the authority of another act) any power not in its nature 
judicial, or, if judicial, not provided for upon the terms the Constitution 
requires. 

4. That whatever doubt may be suggested, whether the power in ques- 
tion is properly of a judicial nature, yet inasmuch as the decision of the 
court is not made final, but may be at least suspended in its operation by the 
Secretary at War, if he shall have cause to suspect imposition or mistake ; 
this subjects the decision of the court to a mode of revision which we con- 
sider to be unwarranted by the Constitution ; for, though Congress may cer- 
tainly establish, in instances not yet provided for, courts of appellate juris- 
(diction, yet such courts must consist of judges appointed in the manner the 
Constitution requires, and holding their offices by no other tenure than that 
of their good behaviour, by which tenure the office of Secretary at War is 
not held. And we beg leave to add, with all due deference, that no decision 
of any court of the United States can, under any circumstances, in our 
opinion, agreeable to the Constitution, be liable to a reversion, or even sus- 
pension, by the Legislature itself, in whom no judicial power of any kind 
appears to be vested, but the important one relative to impeachments.^ 

The question as to whether the act of Congress conferred upon the Cir- 
cuit Court a judicial function, and whether the Federal judges could act as 
commissioners if they could not act as judges, arose in 1792 in Hayburn's 
case (2 Dallas, 409). It was then, however, not decided by that august 
tribunal, as it took the question under advisement until the next term. But 
no decision was ever pronounced, as the sections of the act of 1792 under 
which action had been taken were in the meantime repealed, and, as the re- 
porter informs us, the legislature at the intermediate session provided in 
another way for the relief of the pensioners. While it is correct to say, as 
is often done, that Hayburn's case did not decide the question, it was not left 
undecided, as it appears from a note by Mr. Chief Justice Taney, appended 
to the case of United States v. Ferreira (13 Howard, 40), decided in 1851, 
that the exact question was raised and decided in 1794 by the Supreme Court 
in the case of United States v. Todd. 

An act of Congress was passed in 1793, directing the Secretary of War 
and the Attorney General to get the opinion of the Supreme Court upon the 
question, and the court, contrary to subsequent practice, assumed jurisdiction 
on the theory that the act in question gave it original jurisdiction. An agreed 
statement of facts was presented, setting forth that on May 3, 1792, one Yale 

•2 Dallas, 412, Note. 



THE NATURE OF JUDICIAL POWER 353 

Todd appeared before the Circuit Court, composed of John Jay, Chief Justice, 
WilHam Cushing, Justice, and Richard Law, District Judge, then sitting in 
New Haven and acting as commissioners under the act of 1792; that Todd 
submitted his claim under the act to the court, supporting it by evidence, and 
that the court delivered the opinion that Todd should be placed upon the 
pension list. A certificate of the proceedings and opinion of the court was, 
on May 8, 1792, transmitted to the Secretary of War, who, following the 
opinion of the court, placed Todd upon the pension list and paid over to him, 
in accordance with the opinion and on behalf of the United States, the sum 
of $150 for arrears and $22.91 for pension to be due in September. The 
United States, in order to test the question, sued Todd as defendant to recover 
payment of the sum of $172.91, it being agreed in this remarkable proceeding 
that if the judges of the Circuit Court " sitting as Commissioners, and not as ^ourt* °* 
a Circuit Court," had power to entertain and decide the case, judgment should juSfcVai 
be given for the defendant; whereas, if the Circuit Court, sitting as commis- 
sioners, was not authorized to have taken jurisdiction and to adjudge the 
original case, judgment should be entered against Todd for the sum of 
$172.91 and six cents costs. Todd appeared by distinguished counsel and 
the case was argued by the Attorney General on behalf of the United States. 
In the following passage from the note to United States v. Ferreira, giving 
the facts and the decision in the Todd case, Mr. Chief Justice Taney not only 
states the decision of the court but comments upon it : 

Chief Justice Jay and Justice Cushing, Wilson, Blair, and Paterson, 
were present at the decision. No opinion was filed stating the grounds of 
the decision. Nor is any dissent from the judgment entered on the record. 
It would seem, therefore, to have been unanimous, and that Chief Justice 
Jay and Justice Cushing became satisfied, on further reflection, that the 
power given in the act of 1792 to the Circuit Court as a court, could not 
be construed to give it to the judges out of court as commissioners. It 
must be admitted that the justice of the claims and the meritorious char- 
acter of the claimants would appear to have exercised some influence on their 
judgments in the first instance, and to have led them to give a construction 
to the law which its language would hardly justify upon the most liberal 
rules of interpretation. 

The result of the opinions expressed by the judges of the Supreme Court 
of that day in the note to Hayburn's case, and in the case of the United 
States V. Todd, is this : 

1, That the power proposed to be conferred on the Circuit Courts of 
the United States by the act of 1792 was not judicial power within the mean- 
ing of the Constitution, and was, therefore, unconstitutional, and could not 
lawfully be exercised by the courts. 

2. That as the act of Congress intended to confer the power on the 
courts as a judicial function, it could not be construed as an authority to the 
judges composing the court to exercise the power out of court in the char- 
acter of commissioners.^ 

' 13 Howard, 52-3. Note. 



354 



THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



Further 

Distinctioa 

between 

Judicial 

and Other 

Powers 



It thus appears that the Supreme Court decided, within a very few years 
after its institution, as it has since held, that the Federal courts could only 
exercise judicial power; and the decision is all the more noteworthy, as the 
case was one in which the sympathy of the judges was deeply enlisted and 
in which some of them had acted as individuals, although they felt that they 
could not act officially as judges. 

Two further cases, dealing with the general attributes of judicial as dis- 
tinguished from legislative or executive power, deserve examination in this 
connection, in each of which the opinion was prepared by Chief Justice 
Taney, who worthily wore the mantle of the great Chief Justice. The first 
case to be considered is that of United States v. Ferreira, decided in 1851, 
to which United States v. Todd was appended as a note. This case grew out 
of the treaty of February 22, 1819, between the United States and Spain, by 
which the latter country ceded Florida to the United States, and two acts of 
Congress were passed in order to give effect to the following stipulation con- 
tained in that treaty: 

The United States shall cause satisfaction to be made for the injuries, 
if any, which by process of law shall be established to have been suffered 
by the Spanish officers and individual Spanish inhabitants by the late opera- 
tions of the American army in Florida.^ 



By three acts of Congress of 1823, 1834 and 1849, the judge of the ter- 
ritorial court of Florida, and later the judge of the District Court of the 
United States for the northern district of Florida, was directed to receive, 
examine and adjudge all cases and claims for losses and to report his decisions 
in favor of the claimants, together with the evidence upon which they were 
based, to the Secretary of the Treasury, who was authorized to pay to the 
claimants the sum awarded to them, " on being satisfied that the same is just 
and equitable, within the provisions of the treaty." 

It will be observed that the facts of the case bring it within the principle 
laid down in United States v. Todd, which has just been considered, a fact 
not lost upon the Chief Justice, who referred to Hayburn's case and the 
opinion of the judges who had allowed themselves to act under the law of 
Congress relating to pensions. But the court evidently considered the ques- 
tions involved of such importance as to justify an examination of the case 
upon its merits without regard to precedent. 

In the first place the Chief Justice, on behalf of the court, analyzed the 
acts which the judge was obliged to perform under the laws of Congress, and, 
after having done so, indulged in comment as valuable today as it was then. 
Thus: 

' 13 Howard, 40. 



THE NATURE OF JUDICIAL POWER 355 

It is manifest that this power to decide upon the validity of these claims, 
is not conferred on them as a judicial function, to be exercised in the ordi- 
nary forms of a court of justice. For there is to be no suit; no parties in 
the legal acceptance of the term, are to be made — no process to issue; and 
no one is authorized to appear on behalf of the United States, or to summon 
witnesses in the case. The proceeding is altogether ex parte; and all that the 
judge is required to do, is to receive the claim when the party presents it, 
and to adjust it upon such evidence as he may have before him, or be able 
himself to obtain. But neither the evidence nor his award, are to be filed 
in the court in which he presides, nor recorded there ; but he is required to 
transmit, both the decision and the evidence upon which he decided, to the 
Secretary of the Treasury; and the claim is to be paid if the Secretary 
thinks it just and equitable, but not otherwise. It is to be a debt from the 
United States upon the decision of the Secretary, but not upon that of the 
judge. ^ 

Upon these facts the Chief Justice thus commented: 

It is too evident for argument on the subject, that such a tribunal is not 
a judicial one, and that the act of Congress did not intend to make it one. 
The authority conferred on the respective judges was nothing more than 
that of a commissioner to adjust certain claims against the United States ; 
and the offtce of judges, and their respective jurisdictions, are referred to 
in the law, merely as a designation of the persons to whom the authority is 
confided, and the territorial limits to which it extends. The decision is not 
the judgment of a court of justice. It is the award of a commissioner. The 
act of 1834 calls it an award. And an appeal to this court from such a 
decision, by such an authority from the judgment of a court of record, 
would be an anomaly in the history of jurisprudence. An appeal might as 
well have been taken from the awards of the board of commissioners, under 
the Mexican treaty, which were recently sitting in this city.^ 

The Chief Justice was, of course, aware that the act was judicial, as 
opposed to a legislative, executive or ministerial act, as its successful per- 
formance involved legal principles and judicial discretion. But he was of 
the opinion that it was not an exercise of the judicial power of the United 
States, as that term is used in the Constitution, and as judicial power is to 
be exercised in courts organized in pursuance of the Constitution. Indeed, 
he himself said: 

, The powers conferred by these acts of Congress upon the judge as well 
as the Secretary, are, it is true, judicial in their nature. For judgment and 
discretion must be exercised by both of them. But it is nothing more than 
the power ordinarily given by law to a commissioner appointed to adjust 
claims to lands or money under a treaty; or special powers to inquire into 
or to decide any other particular class of controversies in which the public 
or individuals may be concerned. A power of this description may consti- 
tutionally bq conferred on a Secretary as well as on a commissioner. But is 

' 13 Howard, 46-7. 
' Ibid., 47. 



356 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

not judicial in either case, in the sense in which judicial power is granted 
by the Constitution to the Courts of the United States.^ 

The second case to which reference has been made is that of Gordon v. 
United States (2 Wallace, 561), decided by the Supreme Court in 1864. 
Mr. Chief Justice Taney had prepared a very careful opinion on the ques- 
tion of jurisdiction involved in this case, but he died before the decision 
was announced, and the opinion which he had written and communicated 
to his brethren appears to have been mislaid by them; but a copy, later 
found among his papers, was, by direction of the court, printed as an 
appendix to 117 U. S. Reports, 696-706.' As Mr. Chief Justice Taney's 
opinion is on a subject with which he was peculiarly familiar, and inasmuch 
as it is commonly referred to as the authority on the subject, it seems 
advisable to consider the case at some length. 

The plaintiff, Gordon, administrator of one Fisher, presented a petition 
in the Court of Claims of the United States for damages done to Fisher 
by troops of the United States in the war of 1812 with Great Britain. The 
Court of Claims decided against the claim and Gordon appealed to the 
Supreme Court. The question was similar to but not identical with that 
in the Ferreira case, as the judgment of the court did not determine the 
case finally but made the payment depend upon the inclusion of the claim 
in the Secretary's estimate and upon the appropriation of the estimated 
amount by the Congress. Under an act of Congress, an appeal could be 
taken to the Supreme Court from the Court of Claims, but Mr. Chief 
Justice Taney in his opinion, and the court in its judgment, held that an 
appeal would not lie from the Court of Claims in this instance, because that 
court had not exercised judicial power in the sense of the Constitution, and 
its opinion, therefore, was more in the nature of an award than a judgment 
upon which an appeal would lie to the Supreme Court; because, in either 
event, the Court of Claims or the Supreme Court would merely certify its 
opinion to the executive officer, whose action, not the opinion of either 
court, concluded the matter. 

' 13 Howard, 48. 

' This cause was submitted on the 18th December, 1863. On the 4th of April, 1864, the 
court ordered it to be argued on the second day of the following December Term. Mr. 
Chief Justice Taney had prepared an opinion expressing his views upon the question of 
jurisdiction. This he placed in the hands of the clerk in vacation, to be delivered to the 
judges on their reassembling in December. Before the judges met he died. The clerk 
complied with his request. It is the recollection of the surviving members of the court, 
that this paper was carefully considered by the members of the court in reaching the con- 
clusion reported in 2 Wall. 561 ; and that it was proposed to make it the basis of the opinion, 
which, it appears by the report of the case, was to be subsequently prepared. The paper 
was not restored to the custody of the clerk, nor was the proposed opinion ever prepared. 
At the suggestion of the surviving members of the court, the reporter made efforts to find 
the missing paper, and, having succeeded in doing so, now prints it with their assent. (117 
U. S., Appendix, 697.) 



THE NATURE OF JUDICIAL POWER 357 

In speaking of the nature and functions of the Supreme Court and the 
action it should take in the present case, Mr. Chief Justice Taney said : 

But whether this Court can be required or authorized to hear an appeal 
from such a tribunal, and give an opinion upon it without the power of 
pronouncing a judgment, and issuing the appropriate judicial process to 
carry it into effect, is a very different question, and rests on principles alto- 
gether different. The Supreme Court does not owe its existence- or its 
powers to the Legislative Department of the Government. It is created by 
the Constitution, and represents one of the three great divisions of power 
in the Government of the United States, to each of which the Constitution 
has assigned its appropriate duties and powers, and made each independent 
of the other in performing its appropriate functions. The power conferred 
on this court is exclusively judicial, and it cannot be required or authorized 
to exercise any other.' 

After quoting the first section of Article III of the Constitution, vesting fuP^sd^tion 
the judicial power of the United States in the Supreme Court, and the last 
clause of the same Article, providing that " The Supreme Court shall have 
appellate jurisdiction, both as to law and fact, with such exceptions and 
under such regulations as the Congress shall make," the Chief Justice thus 
continued, in language peculiarly appropriate to the purposes of the present 
essay : 

The existence of this Court is, therefore, as essential to the organization 
of the government established by the Constitution as the election of a presi- 
dent or members of Congress. It is the tribunal which is ultimately to 
decide all judicial questions confided to the Government of the United 
States. No appeal is given from its decisions, nor any power given to the 
legislative or executive departments to interfere with its judgments or 
process of execution. Its jurisdiction and powers and duties being defined 
in the organic law of the government, and being all strictly judicial, Con- 
gress cannot require or authorize the court to exercise any other jurisdic- 
tion or power, or perform any other duty. Chancellor Kent says : " The 
judicial power of the United States is in point of origin and title equal 
with the other powers of the government, and is as exclusively vested in the 
court created by or pursuant to the Constitution, as the legislative power 
is vested in Congress, or the Executive power in the President." I Kent. 
Com., 209-291, 6th ed. See also Story Const., pp. 449-450.=^ 

After stating the elevated and indeed the unique position which the judi- 
cial power occupies in the American system of government, the Chief Jus- 
tice proceeded to discuss the reason for the creation of this power. Thus: 

The reason for giving such unusual power to a judicial tribunal is 
obvious. It was necessary to give it from the complex character of the 
Government of the United States, which is in part National and in part 

M17 U. S., Appendix, 699-700. 
' Ibid., p. 700. 



358 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Federal : where two separate Governments exercise certain powers of 
sovereignty over the same territory, each independent of the other within 
its appropriate sphere of action, and where there was, therefore, an abso- 
lute necessity, in order to preserve internal tranquility, that there should 
be some tribunal to decide between the Government of the United States 
and the government of a State whenever any controversy should arise as 
to their relative and respective powers in the common territory. The 
Supreme Court was created for that purpose, and to insure its impartiality 
it was absolutely necessary to make it independent of the legislative power, 
and the influence direct or indirect of Congress and the Executive. Hence 
the care with which its jurisdiction, powers, and duties are defined in the 
Constitution, and its independence of the legislative branch of the govern- 
ment secured.^ 

The Chief Justice supports his contention by a passage from the 39th 
number of The Federalist written by James Madison, in which he says that 
the decision is to be made impartially and that every precaution is to be 
taken in order to secure this impartiality, because, to quote his exact lan- 
guage, " some such tribunal (as the Supreme Court) is clearly essential to 
prevent an appeal to the sword, and a dissolution of the compact." ^ Upon 
this statement, taking the passage quoted from Mr. Madison as a point of 
departure, the Chief Justice thus continues: 

It was to prevent an appeal to the sword and a dissolution of the com- 
pact that this Court, by the organic law, was made equal in origin and 
equal in title to the legislative and executive branches of the government: 
its powers defined, and limited, and made strictly judicial, and placed there- 
fore beyond the reach of the powers delegated to the Legislative and 
Executive Departments. And it is upon the principle of the perfect inde- 
pendence of this Court, that in cases where the Constitution gives it 
Original, Original jurisdiction, the action of Congress has not been deemed necessary 

Jurisdiction ^^ regulate its exercise, or to prescribe the process to be used to bring the 

parties before the Court, or to carry its judgment into execution. The 
jurisdiction and judicial power being vested in the court, it proceeded to 
prescribe its process and regulate its proceedings according to its own judg- 
ment, and Congress has never attempted to control or interfere with the 
action of the court in this respect.^ 

It will be observed that, in this passage, the Chief Justice refers to the 
original jurisdiction of the court, and that his remarks are strictly limited 
to this portion of its jurisdiction; for, while it is true that, in the exercise 
of its original jurisdiction, the Supreme Court does not compel a State to 
appear before it nor, hitherto at least, by force compel the execution of a 
judgment against a State, the Supreme Court can and does, in the exercise 
of appellate jurisdiction, compel the presence of individuals before it and 

M17 U. S., Appendix, pp. 700-1. 
' The Federalist, 1802, Vol. i, p. 259. 
» 117 U. S., Appendix, 701-2. 



THE NATURE OF JUDICIAL POWER 359 

does likewise compel the execution of its judgment against individuals by "^^^^ ^^ 
the amount of force required to secure obedience to its mandates. After i°dividuais 
saying that an inferior court, in which the judicial power is vested but from state"°'to 
which an appeal lies to the Supreme Court, can only be a judicial tribunal ^pp^" 
authorized to render a judgment, finally deciding the rights of parties 
litigant unless appealed from, and upon w^hich execution may be issued to 
carry the judgment into effect, the Chief Justice goes on to say that " Con- 
gress cannot extend the appellate power of this Court beyond the limits pre- 
scribed by the Constitution, and can neither confer nor impose on it the 
authority or duty of hearing and determining an appeal from a Commis- 
sioner or Auditor, or any other tribunal exercising only special powers 
under an act of Congress; nor can Congress authorize or require this Court 
to express an opinion on a case where its judicial power could not be exer- 
cised, and where its judgment would not be final and conclusive upon the 
rights of the parties, and process of execution awarded to carry it into 
effect." 

The Chief Justice finally insists that it is not only inherent in judicial 
power to decide a question finally, but also that execution shall issue to carry 
the judgment into effect, and that, if the holding of the court be not final 
in first instance, or upon appeal, and if it can not be executed, it is not an 
exercise of the judicial power in the sense of the Constitution. Thus, he 
says : 

The award of execution is a part, and an essential part of every judg- 
ment passed by a court exercising judicial power. It is no judgment, in 
the legal sense of the term, without it. Without such an award the judg- 
ment would be inoperative and nugatory, leaving the aggrieved party 
without a remedy. It would be merely an opinion, which would remain a 
dead letter, and without any operation upon the rights of the parties, 
unless Congress should at some future time sanction it, and pass a law 
authorizing the court to carry its opinion into effect. Such is not the judi- 
cial power confided to this Court, in the exercise of its appellate jurisdic- 
tion: yet it is the whole power that the Court is allowed to exercise under 
this act of Congress.^ 

In the concluding passage of this opinion, which can not be too often 
recommended and read, the Chief Justice calls attention to the fact that an 
attempt on the part of the Congress or of the government to invest the 
courts of the United States with the exercise of power not properly included 
in the grant of judicial power, would be an attempt on the part of the Gov- of"'|[|,'^'^ 
ernment to infringe upon the sovereignty of the States creating the Union, 
which reserved to themselves and their people the powers not directly or 
indirectly delegated to the United States. Thus, Mr. Chief Justice Taney 

* 117 U. S., Appendix, 702. 



Protected 



360 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Finality of 
the Court's 
Decree 



said in the last opinion which he was destined to write as Chief Justice of 
the Court over which he presided: 

The Constitution of the United States delegates no judicial power to 
Congress. Its powers are confined to legislative duties, and restricted 
within certain prescribed limits. By the second section of Article VI., the 
laws of Congress are made the supreme law of the land only when they 
are made in pursuance of the legislative power specified in the Constitution ; 
and by the Xth amendment the powers not delegated to the United States 
nor prohibited by it to the States, are reserved to the States respectively 
or to the people. The reservation to the States respectively can only mean 
the reservation of the rights of sovereignty which they respectively pos- 
sessed before the adoption of the Constitution of the United States, and 
which they had not parted from by that instrument. And any legislation 
by Congress beyond the limits of the power delegated, would be trespassing 
upon the rights of the States or the people, and would not be the supreme 
law of the land, but null and void ; and it would be the duty of the courts 
to declare it so. For whether an act of Congress is within the limits of 
its delegated power or not is a judicial question, to be decided by the courts, 
the Constitution having, in express terms, declared that the judicial power 
shall extend to all cases arising under the Constitution.^ 

After referring to the separation in England of the judicial power from 
the legislative and executive, he thus concludes: 

These cardinal principles of free government had not only been long 
established in England, but also in the United States from the time of their 
earliest colonization, and guided the American people in framing and 
adopting the present Constitution. And it is the duty of this Court to 
maintain it unimpaired as far as it may have the power. And while it 
executes firmly all the judicial powers entrusted to it, the Court will care- 
fully abstain from exercising any power that is not strictly 'judicial in its 
character, and which is not clearly confided to it by the Constitution.^ 

In In re Sanborn (148 U. S., 222, 226), decided in 1893, the Supreme 
Court had occasion to recur to its holding in the Gordon case, and in so 
doing it referred with approval to Air. Chief Justice Taney's opinion 
written for the court in that case. It is therefore unnecessary to state the 
facts in In re Sanborn, but a passage from the unanimous opinion of the 
Court is quoted as showing that that tribunal, upon reconsideration and 
argument, insisted upon the finality of decision as essential to judicial 
power. Thus, Mr. Justice Shiras, in speaking for the court, said: 

Such a finding is not made obligatory on the department to which it 
is reported — certainly not so in terms, — and not so, as we think, by any 
necessary implication. We regard the function of the Court of Claims, in 



117 U. S., Appendix, 705. 
Ihid.. 706. 



THE NATURE OF JTJDICIAL POWER 361 

such a case, as ancillary and advisory only. The finding or conclusion 
reached by that court is not enforceable by any process of execution issu- 
ing from the court, nor is it made, by the statute, the final and indisputable 
basis of action either by the department or by congress. 

In the leading case of Marbury v. Madison (1 Cranch, 137, 177), 
decided in 1803, which will later be considered at length, Mr. Chief Justice 
Marshall said : " It is emphatically the province and duty of the judicial 
department to say what the law is;" and to decide the conflict between 
competing rules of law is " of the very essence of judicial duty." Some 
striking examples of the nature of judicial power have already been stated 
in the English cases on this subject, and, incidentally, in passages quoted 
from decisions of the Supreme Court. As, however, the success of the 
great experiment — for the Supreme Court, without an exact model, was an 
experiment — was due to the fact that, in the exercise of judicial power, it 
has kept not merely departments of the General Government within the meed 
of power granted them by the Constitution, but also keeps the States of the 
Union themselves within their orbits, it is advisable in this connection to state 
the reason for and to show the process by which the Supreme Court of the 
United States, through the exercise of judicial power, necessarily restrains 
the acts of the departments of the General Government and of the States 
within those limits which the States themselves prescribed in the Consti- 
tution. 

There are two passages from the Constitution to be considered in this 
connection. The first, to be dealt with later, extends the judicial power to 
" all Cases, in Law and Equity, arising under this Constitution, the Laws of 
the United States, and Treaties made, or which shall be made, under their 
Authority." ^ The second declares " this Constitution and the Laws of the 
United States," made as in the first passage, " the supreme Law of the 
Land; and the Judges in every State shall be bound thereby, any Thing in 
the Constitution or Laws of any State to the Contrary notwithstanding." * 
It will be observed that, while the Constitution is the supreme law of the 
land, the laws of the United States are only to be considered supreme and 
binding if they are made in pursuance of the Constitution, for it might be 
attempted to pass laws which were not in pursuance of that instrument. In 
this latter case they are void, because the grant is to make laws in accord- 
ance with, not inconsistent with, the Constitution. The intention of the 
framers to have the judicial power pass upon and determine these questions 
is evident in extending it to the Constitution, to the laws of the United 
States, and to the treaties, which are likewise laws, made under the authority 
of the United States, and by requiring judges in every State to be bound 

* Art. Ill, Section 2, of the Constitution. 
' Art. VI of the Constitution. 



362 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

by the Constitution, laws of the United States made in pursuance of the 
Constitution and the treaties of the United States. 

Experience shows that men can not safely be entrusted with interpreting, 
applying and executing the laws which they themselves have made, and no 
man can in reason be allowed to be suitor, judge and sheriff in his own case. 
There is indeed a presumption that the legislature, owing its existence to 
the Constitution, will restrain its acts within the grant of power, and there 
may also be a presumption that the executive will not knowingly exceed the 
grant of power. But if the legislative or executive department should deter- 
mine this question for itself, there is reason to believe, and indeed to fear, 
that self-interest might enter into the determination. The case with the 
judiciary is different. The court does not make the law which it interprets 
and applies. The judge is not a party to the case. If he has any interest 
in it, he can be challenged and disqualified. And he does not himself 
execute the decision which he has rendered, as this is the duty of the execu- 
tive branch of the government. 

But the framers of the Constitution did not need to rely upon unaided 
reason, or even to be guided by the dangers suggested by experience. As 
colonists they had oeen kept by the King in Council, acting directly or indi- 
rectly through a committee, within the sphere of the grant of power con- 
tained in the colonial charters, and they were familiar with English cases 
declaring null and void by-laws of a corporation in excess of the grant. We 
would therefore expect that they would have invested the judiciary with 
this power, and although there is no express grant of this function or attri- 
bute of power in the Constitution other than the words which have been 
quoted, it is a fact that the framers of the Constitution stated in the debates, 
as reported by Mr. Madison, that the Supreme Court would exercise this 
power, and it is also a fact that statements of a like kind were made in the 
Federalist, which was written by Messrs. Hamilton, Madison and Jay for 
the purpose of securing the ratification of the Constitution of the United 
States and which is today regarded as the classical and contemporaneous 
exposition of the Constitution. It is further a fact that members of the 
State conventions, called for the express purpose of ratifying the Consti- 
tution, declared that the Supreme Court possessed such power under the 
constitutional grant. And it is, finally, a fact that the Chief Justice who 
first passed upon this question, and who rendered the classical decision in 
favor of the judicial power, expressly so said in the Virginia convention. 

A well informed and accurate writer states that, among the fifty-five 
members of the Constitutional Convention, there were " twenty-five whose 
character, ability, diligence and regularity of attendance, separately or in 
combination, made them the dominant element in the Convention; " and 



THE NATURE OF JUDICIAL POWER 363 

that, of these twenty-five, " seventeen . . . declared, directly or indirectly, 
for judicial control." ^ To these are also to be added two members not 
included among the twenty-five, who expressed themselves in favor of judi- 
cial control by deed rather than by word of mouth; because David Brearly, 
a delegate from New Jersey and Chief Justice of its Supreme Court, had, 
it is believed, supplied an early if not the first instance in American annals 
of the judicial power declaring an act of the legislature unconstitutional, 
as inconsistent with the fundamental law of the land, in the case of Holmes 
v. Walton, decided in 1780. George Wythe, a delegate from Virginia and 
justice of the Court of Appeals of his State, appears to have said, two 
years later (1782), in the case of Commonwealth v. Caton (4 Call, 5), that 
an act of the legislature of Virginia was unconstitutional for a like reason. 
Elbridge Gerry, a delegate from Massachusetts, expressed himself strongly 
on this point on two occasions. In the matter of making judges members 
of the proposed council of revision, he doubted whether the judiciary ought 
to form a part of it " as they will have a sufficient check ag^'. encroachments 
on their own department by their exposition of the laws, which involved a 
power of deciding on their Constitutionality. In some States the Judges 
had actually set aside laws as being ag^'. the Constitution. This was done 
too with general approbation. It was quite foreign from the nature of y* 
office to make them judges of the policy of public measures." ^ On a second 
occasion he said: 

If the power of making declaratory acts really vests in Congress and 
the judges are bound by our decisions, we may alter that part of the Con- 
stitution which is secured from being amended by the 5th article ; . . . 
The merchant does not construe the Constitution in the manner that we 
have done. He therefore institutes a suit and brings it before the supreme 
judicature of the United States for trial. The judges, who are bound by 
oath to support the Constitution, declare against this law ; they would there- 
fore give judgment in favor of the merchant.^ 

This latter statement of Mr. Gerry is especially noteworthy, as it recognized 
the power and method in which it is exercised at the suit of an individual 
who feels himself aggrieved in his property or in his person. 

We would expect to have Alexander Hamilton state his views on this 
very important and, in the language of the day, interesting question, and 
we are not disappointed. In the 78th number of The Federalist, written to 
advocate the revision of the Constitution, Colonel Hamilton said: 

There is no position which depends on clearer principles, than that 
every act of a delegated authority, contrary to the tenor of the commission 

1 Charles A. Beard, The Supreme Court and the Constitution, 1912, pp. 17-18. 

* Documentary History, Vol. iii, pp. 54-5. Session of June 4th. 

• Elliot, Debates. Vol. iv, p. 393. 



364 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

under which it is exercised, is void. No legislative act, therefore, contrary 
to the constitution, can be valid. To deny this, would be to affirm, that 
the deputy is greater than his principal ; that the servant is above his 
master; that the representatives of the people are superior to the people 
themselves ; that men, acting by virtue of powers, may do not only what 
their powers do not authorize, but what they forbid.^ 

And in a later passage from the same number, he says: 

The interpretation of the laws is the proper and peculiar province of 
the courts. A constitution is, in fact, and must be, regarded by the judges 
as a fundamental law. It must therefore belong to them to ascertain its 
meaning, as well as the meaning of any particular act proceeding from the 
legislative body. If there should happen to be an irreconcilable variance 
between the two, that which has the superior obligation and validity ought, 
of course, to be preferred ; in other words, the constitution ought to be 
preferred to the statute, the intention of the people to the intention of 
their agents.^ 

In addition to these authoritative pronouncements, we have the expres- 
sions of opinion of two men made in the convention of their States, both 
destined to be Chief Justices of the Supreme Court of the United States. 
Thus, Oliver Ellsworth, who had been a member of the Philadelphia Con- 
vention, said: 

This Constitution defines the extent of the powers of the general gov- 
ernment. If the general legislature should at any time overleap their 
limits, the judicial department is a constitutional check. If the United 
States go beyond their powers, if they make a law which the Constitution 
does not authorize, it is void ; and the judicial power, the national judges, 
who, to secure their impartiality, are to be made independent, will declare 
it to be void.^ 

The other, John Marshall, a member of the Virginian, though not of the 
Constitutional, Convention, h'lt destined to be the great expounder of the 
Constitution from the bench, said in the course of the debates in his State 
Convention : 

Has the government of the United States power to make laws on every 
subject? . . . Can they make laws affecting the mode of transferring 
property, or contracts, or claims, between citizens of the same state? Can 
they go beyond the delegated powers? If they were to make a law not 
warranted by any of the powers enumerated, it would be considered by 
the judges as an infringement of the Constitution which they are to guard. 
They would not consider such a law as coming under their jurisdiction. 
They would declare it void.* 

• The Federalist, 1802, Vol. ii, p. 212. 
'Ibid., Vol. ii, pp. 212-13. 

' Elliot, Debates, Vol. ii, p. 196. 

• Ibid., Vol. iii, p. 553. 



THE NATURE OF JUDICIAL POWER 365 

These expressions of opinion before the Constitution went into effect, 
are of importance in that they foreshadow the actions of courts established 
under the Constitution in the interpretation and appHcation of judicial 
power to cases brought before them involving the Constitution, laws of the 
United States made in pursuance thereof, and treaties concluded by the 
United States with foreign countries. It will be recalled that, in a letter 
addressed to the President under date of April 18, 1792, by Messrs. Wilson 
and Blair, Justices, and Judge Peters of the District Court of Pennsylvania, 
they referred to " the sentiments, which, on a late painful occasion, gov- 
erned us, with regard to an act passed by the legislature of the union." ^ 

This is conjectured and may be taken as established by Professor Farrand 
in an interesting note on the first Hayburn case to be the application of one 
William Hayburn to the Circuit Court of Pennsylvania for a pension under 
the act of Congress of 1792, and the decision of the court, just one week 
before the date of the letter, that such act was unconstitutional and that the 
judges could not therefore entertain and grant the application. The fol- 
lowing further passage from the letter is thought by Professor Farrand to 
refer to this action of the Circuit Court: 

Upon due consideration, we have been unanimously of opinion, that, 
under this act, the circuit court, held for the Pennsylvania district, could 
not proceed ; ... Be assured, that, though it became necessary, it was 
far from being pleasant. To be obliged to act contrary either to the 
obvious directions of congress, or to a constitutional principle, in our judg- 
ment, equally obvious, excited feelings in us, which we hope never to 
experience again.^ 

The reader will now be prepared to appreciate the brief record copied from 
the docket of the Circuit Court, a discovery made known by Professor 
Farrand : 

At a Circuit Court of the United States in and for the Pennsylvania 
District, etc. 

11th day of April, 1792, before Wilson, Blair and Peters. 

The petition of William Hayburn, was read and after due deliberation 
thereupon had it is considered by the Court that the same be not proceeded 
upon.* 

Three years later, in 1795, the Circuit Court of the United States for 
the District of Pennsylvania, declared an act of that State to be null and 
void, as repugnant to the constitution of Pennsylvania, in Van Home's 

' See ante, p. 351. . . , „ . 

* Max Farrand, The First Hayburn Case, 1792, American Htstoncal Review, Vol. xin, 
p. 283. (January, 1908.) 
'Ibid. 



366 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Lessee v. Dorrance (2 Dallas, 304, 308, 309). More fortunate than Messrs. 
Wilson and Blair in the Hayburn case, the opinion, or rather the charge, of 
Mr. Justice Patterson has been preserved, in accordance with which the jury 
rendered its verdict and the court its judgment. 

In the course of his charge, Mr. Justice Patterson had occasion to refer 
to the origin and nature of a constitution and the relation to it of laws 
passed by a legislature under a constitutional grant of power, and his lan- 
guage is applicable to the constitution of any state where the American 
system prevails. Thus, he said: 

The Constitution is the work or will of the People themselves, in their 
original, sovereign, and unlimited capacity. Law is the work or will of 
the Legislature in their derivative and subordinate capacity. The one is 
the work of the Creator, and the other of the Creature. The Constitution 
fixes limits to the exercise of legislative authority, and prescribes the 
orbit within which it must move. In short, gentlemen, the Constitution is 
^ the sun of the political system, around which all Legislative, Executive and 
Judicial bodies must revolve. Whatever may be the case in other coun- 
tries, yet in this there can be no doubt, that every act of the Legislature, 
repugnant to the Constitution, is absolutely void. . . . 

The Constitution of a State is stable and permanent, not to be worked 
upon by the temper of the times, nor to rise and fall with the tide of 
events : notwithstanding the competition of opposing interests, and the 
violence of contending parties, it remains firm and immoveable, as a moun- 
tain amidst the strife of storms, or a rock in the ocean amidst the raging 
of the waves. I take it to be a clear position; that if a legislative act 
oppugns a constitutional principle, the former must give way, and be 
rejected on the score of repugnance. I hold it to be a position equally clear 
and sound, that, in such case, it will be the duty of the Court to adhere to 
the Constitution, and to declare the act null and void. The Constitution 
is the basis of legislative authority ; it lies at the foundation of all law, and 
is a rule and commission by which both Legislators and Judges are to 
proceed. It is an important principle, which, in the discussion of questions 
of the present kind, ought never to be lost sight of, that the Judiciary in 
this country is not a subordinate, but co-ordinate, branch of the government.'- 

Fifteen years later, that is to say, in 1803, after having his experience 
at the bar broadened by service in Congress, as Minister to France, as Sec- 
retary of War and as Secretary of State, John Marshall was called upon, 
as Chief Justice of the Supreme Court, to decide the very question in fact 
which he had decided in theory in the Constitutional Convention of his 
State. In holding that the original jurisdiction of the Suprem.e Court as 
stated in the Constitution could neither be enlarged nor lessened by the 
Congress, he declared on behalf of the court, in the case of Marbury v. 
Madison (1 Cranch, 137), an act of Congress unconstitutional and as null 

*2 Dallas. 308-9. 



THE NATURE OF JUDICIAL POWER 367 

and void, which attempted to enlarge its original jurisdiction. In the course 
of his opinion he said : 

The question, whether an act, repugnant to the constitution, can become 
the law of the land, is a question deeply interesting to the United States; 
but, happily, not of an intricacy proportioned to its interest. It seems only 
necessary to recognise certain principles, supposed to have been long and 
well established, to decide it. 

That the people have an original right to establish, for their future gov- 
ernment, such principles as, in their opinion, shall most conduce to their 
own happiness is the basis on which the whole American fabric has been 
erected. The exercise of this original right is a very great exertion ; nor 
can it, nor ought it, to be frequently repeated. The principles, therefore, 
so established, are deemed fundamental. And as the authority from which 
they proceed is supreme, and can seldom act, they are designed to be 
permanent. 

This original and supreme will organizes the government, and assigns 
to different departments their respective powers. It may either stop here, 
or establish certain limits not to be transcended by those departments. 

The government of the United States is of the latter description. The 
powers of the legislature are defined and limited ; and that these limits may 
not be mistaken, or forgotten, the constitution is written. To what purpose 
are powers limited, and to what purpose is that limitation committed to 
writing, if these limits may, at any time, be passed by those intended to be 
restrained? The distinction between a government with limited and unlim- 
ited powers is abolished, if those limits do not confine the persons on whom 
they are imposed, and if acts prohibited and acts allowed, are of equal 
obligation. It is a proposition too plain to be contested, that the consti- 
tution controls any legislative act repugnant to it ; or, that the legislature 
may alter the constitution by an ordinary act. . . . 

It is emphatically the province and duty of the judicial department to 
say what the law is. Those who apply the rule to particular cases, must 
of necessity expound and interpret that rule. If two laws conflict with 
each other, the courts must decide on the operation of each. 

So if a law be in opposition to the constitution; if both the law and the 
constitution apply to a particular case, so that the court must either decide 
that case conformably to the law, disregarding the constitution; or con- 
formably to the constitution, disregarding the law; the court must determine 
which of these conflicting rules governs the case. This is of the very 
essence of judicial duty. 

If, then, the courts are to regard the constitution, and the constitution 
is superior to any ordinary act of the legislature, the constitution, and not 
such ordinary act, must govern the case to which they both apply. 

Those, then, who controvert the principle that the constitution is to be 
considered, in court, as a paramount law, are reduced to the necessity of 
maintaining that courts must close their eyes on the constitution, and see 
only the law. 

This doctrine would subvert the very foundation of all written consti- 
tutions. It would declare that an act which, according to the principles and 
theory of our government, is entirely void, is yet, in practice, completely 
obligatory. It would declare that if the legislature shall do what is expressly 
forbidden, such act, notwithstanding the express prohibition, is in reality 



368 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

eflfectual. It would be giving to the legislature a practical and real omnipo- 
tence, with the same breath which professes to restrict their powers within 
narrow limits. It is prescribing limits, and declaring that those limits may 
be passed at pleasure. 

That it thus reduces to nothing what we have deemed the greatest 
improvement on political institutions — a written constitution — would of 
itself be sufficient, in America, where written constitutions have been 
viewed with so much reverence, for rejecting the construction. But the 
peculiar expressions of the constitution of the United States furnish addi- 
tional arguments in favor of its rejection. 

The judicial power of the United States is extended to all cases arising 
under the constitution. 

Could it be the intention of those who gave this power, to say that in 
using it the constitution should not be looked into? That a case arising 
under the constitution should be decided without examining the instrument 
under which it arises? 

This is too extravagant to be maintained. 

In some cases, then, the constitution must be looked into by the judges. 
And if they can open it at all, wliat part of it are they forbidden to read 
or obey ? ^ 

Two further cases may be considered in this connection, McCulloch v. 
Maryland (4 Wheaton, 316), decided in 1819, and Collector v. Day (11 
Wallace, 113), decided in 1870. 

For present purposes, the facts in McCulloch v. Maryland may be stated 
as an attempt on the part of the State of Maryland, by act of its legislature, 
to impose a tax upon a branch of the bank of the United States establish- 
ment in that State. We are not concerned with the power of the United 
States to establish a bank, for, although the power to create a corporation 
was not given in express terms to the Congress by the Constitution, and 
while the Congress might not have been authorized to establish a corpora- 
tion as such, without relation to powers expressly or impliedly granted, 
nevertheless the court found that a corporation could be created, such 
as a bank, as a financial or fiscal agent of the United States, under 
the authorization to Congress to make all laws which shall be necessary 
and proper for carrying into execution the powers vested in the 
Congress. 

Admitting the power to create the bank as an agency of the government 
of the Union, the court held that a State of the Union could not tax an 
agency of the General Government, and that a law of Maryland attempting to 
do so was unconstitutional, and therefore null and void, inasmuch as the 
United States was sovereign and could therefore lawfully exercise sovereign 
powers within the limits of the Constitution. It was the opinion of the 
court that, 

* 1 Cranch, 17S-9. 



THE NATURE OF JTJDICIAL POWER 369 

In America, the powers of sovereignty are divided between the govern- 
ment of the Union, and those of the States. They are each sovereign, with 
respect to the objects committed to it, and neither sovereign with respect 
to the objects committed to the other. ^ 

These were not idle words on the part of Mr. Chief Justice Marshall. 
He ineant what he said, and, recognizing that " In America, the powers of 
sovereignty are divided between the government of the Union, and those of 
the States," the Supreme Court held the reverse to be true in the case of 
Collector v. Day (11 Wallace, 113), that the United States could not, under 
the Constitution, tax an agent of the States, in this particular instance a 
judicial officer of Massachusetts, and that an Act of Congress attempting to 
do so was unconstitutional, and therefore null and void. In delivering the 
opinion of the court, Mr. Justice Nelson referred throughout to McCulloch 
V. Maryland, saying: 

It is conceded in the case of McCulloch v. Maryland, that the power of 
taxation by the States was not abridged by the grant of a similar power 
to the government of the Union ; that it was retained by the States, and that 
the power is to be concurrently exercised by the two governments ; and 
also that there is no express constitutional prohibition upon the States 
against taxing the means or instrumentalities of the general government. 
But, it was held, and, we agree properly held, to be prohibited by neces- 
sary implication; otherwise, the States might impose taxation to an extent 
that would impair, if not wholly defeat, the operations of the Federal 
authorities when acting in their appropriate sphere.^ 

That the United States could not tax an agency of the State would seem to 
be as clear as that the State could not tax an agency of the United States, 
and Mr. Justice Nelson, speaking for the court, so held for the following 
reasons : 

It is a familiar rule of construction of the Constitution of the Union, 
that the sovereign powers vested in the State governments by their respec- ^If^-'. 
tive constitutions, remained unaltered and unimpaired, except so far as they to the 
were granted to the government of the United States. 1 hat the intention and"o 
of the framers of the Constitution in this respect might not be misunder- 2^*" 
stood, this rule of interpretation is expressly declared in the tenth article 
of the amendments, namely : " The powers not delegated to the United 
States are reserved to the States respectively, or, to the people." The gov- 
ernment of the United States, therefore, can claim no powers which are 
not granted to it by the Constitution, and the powers actually granted must 
be such as are expressly given, or given by necessary implication. 

The general government, and the States, although both exist within the 
same territorial limits, are separate and distinct sovereignties, acting sepa- 
rately and independently of each other, within their respective spheres. 

* 4 Wheaton, 410. 

• 11 Wallace, 123-4. 



370 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The former in its appropriate sphere is supreme ; but the States within the 
limits of their powers not granted, or, in the language of the tenth amend- 
ment, " reserved," are as independent of the general government as that 
government within its sphere is independent of the States.^ 

It is indeed, as Mr. Chief Justice Marshall said, " the province and duty 
of the judicial department to say what the law is " and that it is " of the 
very essence of judicial duty " to decide the conflict between competing rules 
of law. But the judicial power of the United States was not meant to be 
and is not the agency of the General Government, to maintain its supremacy 
at the expense of the States. It maintains the powers which the States, in 
their common interest, freely granted to the agency of their creation, which 
we call the United States, and protects it from assault by one of the States 
in its own interest. On the other hand, it maintains the rights of the States 
not granted by them to the Government of the Union, but, in the language 
of the 10th Amendment, '* reserved to the States respectively, or to the 
people " against assault of that Government in the unconstitutional exercise 
of power. As Chief Justice Chase said in the great and leading case of 
Texas v. White (7 Wallace, 700, 725), decided in 1868, at a time when the 
existence of the States depended upon the correct interpretation of the judi- 
cial power of the United States: 

..." the people of each State compose a State, having its own gov- 
ernment, and endowed with all the functions essential to separate and inde- 
pendent existence," and that " without the States in union, there could be 
no such political body as the United States." [County of Lane v. The 
State of Oregon, 7 Wall. 76.] Not only, therefore, can there be no loss 
of separate and independent autonomy to the States, through their union 
under the Constitution, but it may be not unreasonably said that the pres- 
ervation of the States, and the maintenance of their governments, are as 
much within the design and care of the Constitution as the preservation of 
the Union and the maintenance of the National government. The Consti- 
tion, in all its provisions, looks to an indestructible Union, composed of 
indestructible States. 

A difficulty standing in the creation of an international court of justice has 
been, and appears still to be, the difficulty of distinguishing judicial from 
political power. There appears to be a willingness to create an international 
judiciary, reserving, however, the right of each State in controversy, to 
determine whether the question involved is or is not political. 

The experience of the United States shows that this question can properly 
be determined by a court, because in a long line of decisions the Supreme 
Court of the United States has not only been able to draw the line with 
precision, but also to the satisfaction of the litigating parties. 

The nature of judicial power should, therefore, be clear to those who really 
care to unveil its mysteries. 
' 11 Wallace, 124. 



XVIII 
POWERS OF THE SUPREME COURT 

I directed this cause to stand over for judgment, not so much from any doubt of what 
was the justice of the case, as by reason of the nature of it, the great consequence and 
importance, and the great labour and ability of the argument on both sides ; it being for 
the determination of the right and boundaries of two great provincial governments and 
three counties; of a nature worthy the judicature of a Roman senate rather than of a 
single judge: and my consolation is, that if I should err in my judgment, there is a judica- 
ture equal in dignity to a Roman senate that will correct it. . . 

The relief prayed must be admitted to be the common and ordinary equity dispensed 
by this court; the specific performance of agreements being one of the great heads of 
this court, and the most useful one, and better than damages at law, so far as relates to 
the thing in specie; and more useful in a case of this nature than in most others; because 
no damages in an action of covenant could be at all adequate to what is intended by the 
parties, and to the utility to arise from this agreement, vis. the settling and fixing these 
boundaries in peace, to prevent the disorder and mischief, which in remote countries, 
distant from the seat of government, are most likely to happen, and most mischievous. 
Therefore the remedy prayed by a specific performance is more necessary here than in 
other cases : provided it is proper in other respects : and the relief sought must prevail, 
unless sufficient objections are shewn by defendant; who has made many and various 
for that purpose. . . . 

. . . This court therefore has no original jurisdiction on the direct question of the 
original right of the boundaries; and this bill does not stand in need of that. It is founded 
on articles executed in England under seal for mutual consideration; which gives juris- 
diction to the King's courts both of law and equity, whatever be the subject matter. . . 
The conscience of the party was bound by this agreement; and being within the juris- 
diction of this court (4 Inst. 213; 1 Ves. sen. 204, 255), which acts in personam, the court 
may properly decree it as an agreement, if a foundation for it. To go a step farther: 
as this court collaterally and in consequence of the agreement judges concerning matters 
not originally in its jurisdiction, it would decree a performance of articles of agreement 
to perform a sentence in the Ecclesiastical court, just as a court of law would maintain 
an action for damages in breach of covenant. {Lord Chancellor Hardiincke in Penn v. 
Lord Baltimore, i Vesey, Sr., 444, 446-448, decided in 1750, English Reports, Full Reprint, 
Vol. XXVII, Chancery VII, 1903, pp. 1133-1135.) 

We are all satisfied, that the bill must be dismissed. It is a case of mutual treaty 
between persons acting in that instance as states mdependent of each other; and the 
circumstance, that the East India Company are mere subjects with relation to this country, 
has nothing to do with that. That treaty was entered into with them, not as subjects, but 
as a neighbouring independent state, and is the same, es if it was a treaty between two 
sovereigns; and consequently is not a subject of private, municipal, jurisdiction. (Barclay v. 
Russell, 3 Ves. 424. D older v. Lord Huntingfield. 9 Ves. 283.) 

The Court considers the case totally independent of the judgment, the Lord Chancellor 
pronounced : for the case, upon which the Court proceeds, is introduced by the answer, 
which has added a great number of particulars to the case by introducing the other treaty, 
which explains the first; and shews, it was not mercantile in its nature, but political; and 
therefore this decision stands wholly clear of the judgment upon the plea (Lord Commis- 
sioner Eyre in Nabob of the Carnatic v. East India Company, 2 Vesey, Jr., 56, 60, decided 
»'« 1793, English Reports, Full Reprint, Vol. XXX, Chancery X, 1903, p. 523.) 

If the bill contains no averment of a right of soil in New-York, I think it must be 
defective, and lays no foundation for an injunction. To have the benefit of the agreement 
between the states, the defendants below (who are the settlers of New-York) must apply 
to a court of equity as well as the state herself; but, in no case, can a specific performance 
be decreed, unless there is a substantial right of soil, not a mere political jurisdiction, to 
be protected and enforced. (Chief Justice Ellsworth in State of New York v. State of 
Connecticut, 4 Dallas, 3, 4, note, decided in 1799.) 

371 



372 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

It is emphatically the province and duty of the judicial department to say what the law 
is. Those who apply the rule to particular cases, must of necessity expound and mterpret 
that rule. If two laws conflict with each other, the courts must decide on the operation of 
each. 

So if a law be in opposition to the constitution; if both the law and the constitution 
apply to a particular case, so that the court must either decide that case conformably to the 
law, disregarding the constitution ; or conformably to the constitution, disregarding the law ; 
the court must determine which of these conflicting rules governs the case. This is of the 
very essence of judicial duty. {Chief Justice Marshall in Marbury v. Madison, i Cranch, 
137, 177-17S, decided in 1803.) 

A serious additional objection exists to the jurisdiction of the court. Is the matter of 
the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state 
from the forcible exercise of legislative power over a neighbouring people, asserting their 
independence; their right to which the state denies. . . 

. . . The bill requires us to control the legislature of Georgia, and to restrain the ex- 
ertion of its physical force. The propriety of such an interposition by the court may be 
well questioned. It savours too much of the exercise of political power to be within the 
proper province of the judicial department. {Chief Justice Marshall in Cherokee Nation 
V. State of Georgia, 3 Peters, i, 20, decided in 1831.) 

In council, the king had no original judicial power. 1 Ves. sen. 447. He decided on 
appeals from the colonial courts, settled boundaries, in virtue of his prerogative, where 
there was no agreement ; but if there is a disputed agreement, the king cannot decree on 
it, and therefore, the council remit it to be determined in another place, on the foot of 
the contract, 1 Ves. sen. 447. In virtue of his prerogative, where there was no agree- 
ment, 1 Ves. sen. 205, the king acts not as a judge, but as the sovereign acting by the advice 
of his counsel, the members whereof do not and cannot sit as judges. By the statute 20 
E. 3, ch. 1, it is declared, that " the king hath delegated his whole judicial power to the 
judges, all matters of judicature according to the laws," 1 Ruff. 246; 4 Co. Inst. 70, 74; 
he had, therefore, none to exercise: and judges, though members of council, did not sit 
in judicature, but merely as his advisers. . . 

If judicial authority is competent to settle what is the line between judicial and 
political power and questions, it appears from this view of the law, as administered in 
England and the courts of the United States, to have been done without any one decision 
to the contrary, from the time of Edward the Third. The statute referred to, operated 
like our constitution to make all questions judicial, which were submitted to judicial power, 
by the parliament of England, the people or legislature of these states, or congress; and 
when this has been done by the constitution, in reference to disputed boundaries, it will 
be a dead letter if we did not exercise it now, as this Court has done in the cases referred 
to. {Mr. Justice Baldivin in State of Rhode Island v. State of Massachusetts, 12 Peters, 
657, 739-748, decid-ed in 1838.) 

A motion has been made by the counsel for the defendants to dismiss the bill for want 
of jurisdiction, for which a precedent is found in the case of The State of Rhode Island v. 
Th€ State of Massachusetts. It is claimed that the court has no jurisdiction either over 
the subject-matter set forth in the bill or over the parties defendants. And, in support of 
the first ground, it is urged that the matters involved, and presented for adjudication, are 
political and not judicial, and, therefore, not the subject of judicial cognizance. 

This distinction results from the organization of the government into the three great 
departments, executive, legislative, and judicial, and from the assignment and limitation of 
the powers of each by the Constitution. 

The judicial power is vested in one supreme court, and in such inferior courts as Con- 
gress may ordain and establish : the political power of the government in the other two 
departments. 

The distinction between judicial and political power is so generally acknowledged in 
the jurisprudence both of England and of this country, that we need do no more than refer 
to some of the authorities on the subject. They are all in one direction. Nabob of Car- 
natic V. The East India Co., 1 Vesey, Jr., 375-393, S. C„ 2 Id. 56-60; Penn v. Lord Balti- 
more, 1 Vesey, 446-7; New York v. Connecticut, 4 Dallas, 4-6; The Cherokee Nation v. 
Georgia, 5 Peters, 1, 20, 29, 30, 51, 75; The State of Rhode Island v. The State of Massa- 
chusetts, 12 lb., 657, 733, 734, 737, 738. {M>r. Justice Nelson in Georgia v. Stanton, 6 Wallace, 
50, 71, decided in 1867.) 

The position and rank, therefore, assigned to this Court in the Government of the 
United States, differ from that of the highest judicial power in England, which is sub- 



POWERS OF THE SUPREME COURT 



373 



ordinate to the legislative power, and bound to obey any law that Parliament may pass, 
although it may, in the opinion of the court, be in conflict with the principles of Magna 
Charta or the Petition of Rights. 

The reason for giving such unusual power to a judicial tribunal is obvious. It was 
necessary to give it from the complex character of the Government of the United States, 
which is in part National and in part Federal : where two separate governments exercise 
certain powers of sovereignty over the same territory, each independent of the other within 
its appropriate sphere of action, and where there was, therefore, an absolute necessity, in 
order to preserve internal tranquillity, that there should be some tribunal to decide between 
the Government of the United States and the government of a State whenever any con- 
troversy should arise as to their relative and respective powers in the common territory. 
The Supreme Court was created for that purpose, and to insure its impartiality it was 
absolutely necessary to make it independent of the legislative power, and the influence direct 
or indirect of Congress and the Executive. Hence the care with which its jurisdiction, 
powers, and duties are defined in the Constitution, and its independence of the legislative 
branch of the government secured. (Chief Justice Taney in Gordon v. United States, 
117 United States, (x)7, 700-701, decided in 1864.) 

It was to prevent an appeal to the sword and a dissolution of the compact that this 
Court, by the organic law, was made equal in origin and equal in title to the legislative and 
executive branches of the government: its powers defined, and limited, and made strictly 
judicial, and placed therefore beyond the reach of the powers delegated to the Legislative 
and Executive Departments. (Chief Justice Taney in Gordon v. United States, 117 United 
States, 697, 701, decided in 1864.) 

The legal supremacy of the constitution is essential to the existence of the state ; the 
glory of the founders of the United States is to have devised or adopted arrangements 
under which the Constitution became in reality as well as name the supreme law of the 
land. This end they attained by adherence to a very obvious principle, and by the invention 
of appropriate machinery for carrying this principle into effect. 

The principle is clearly expressed in the Constitution of the United States. "The 
Constitution," runs article 6, " and the laws of the United States which shall be made in 
pursuance thereof . . . shall be the supreme law of the land, and the judges in every 
State shall be bound thereby, anything in the constitution or laws of any State to the 
contrary notwithstanding." The import of these expressions is unmistakable. . . 

To have laid down the principle with distinctness is much, but the great problem was 
how to ensure that the principle should be obeyed; for there existed a danger that judges 
depending on the federal government should wrest the Constitution in favour of the central 
power, and that judges created by the States should wrest it in favour of State rights or 
interests. This problem has been solved by the creation of the Supreme Court and of the 
Federal Judiciary (Albert V-enn Dicey, Introduction to the Study of the Lm.w of the Con- 
stitution, 1883, 8th edition, 1915, pp. 154-155.) 



CHAPTER XVIII 



POWERS OF THE SUPREME COURT 



In settling the jurisdiction of the Supreme Court, the draft of the Con- 
stitution as it left the hands of the Committee of Detail provided — in the 
3d section of its 11th article, that "the Jurisdiction of the Supreme Court 
shall extend to all cases arising under laws passed by the Legislature of the 
United States." That the court should possess and that it should only exer- 
cise judicial power was the intent of the framers of the Constitution, as 
plainly indicated by the following passage from Mr. Madison's Notes: 

Doc''. Johnson moved to insert the words " this Constitution and the " 
before the word " laws." 

M''. Madison doubted whether it was not going too far to extend the 
jurisdiction of the Court generally to cases arising Under the Constitution, 
& whether it ought not to be limited to cases of a Judiciary Nature. The 
right of expounding the Constitution in cases not of this nature ought not 
to be given to that Department. 

The motion of Doc"". Johnson was agreed to nem : con : it being generally 
supposed that the jurisdiction given was constructively limited to cases of 
a Judiciary nature. 



Determina- 
tion of 
Constitu- 
tionality 



And, that there might be no doubt on this point, Mr. Madison moved that 
the phrase " the jurisdiction of the Supreme Court " should be stricken and 
replaced by the words " Judicial power," which, as Mr. Madison records, 
" was agreed to nem : con : " ^ 

The framers of the Constitution were clear in their minds as to the func- 
tion of the Supreme Court. The Government of the Union as well as the 
Union itself, owes its existence to the Constitution, and that instrument is 
at once the source and measure of power which these United States can 
lawfully exercise. Laws in accordance with it are constitutional, laws 
inconsistent with it are unconstitutional, whether they be laws of the Con- 
gress, constitutions or laws of the States of the Union. 

To determine these questions is important, often difficult, and as deli- 
cate as difficult. The power to do so must be lodged somewhere. The legis- 
lature can not decide whether its act is proper, because so to do would 
subordinate the Constitution to its creature. The executive can not decide 



* Documentary History of the Constitutior, 
August 27th. 

374 



Vol. Ill, pp. 626. 627. Session of 



POWERS OF THE SUPREME COURT 375 

finally, although he may exercise a veto upon legislation, because to do so 
would subordinate the Constitution to his will or pleasure. The framers of 
the Constitution, therefore, confided the determination of these questions 
to the judicial power by extending it " to all cases in law and equity arising 
under this Constitution, the laws of the United States and treaties made or 
which shall be made under their authority." And, that there might be no 
doubt upon this fundamental question, they provided, in Article 6, that 
" This Constitution and the laws of the United States which shall be made 
in pursuance thereof; and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme law of the land; and 
the judges in every State shall be bound thereby, anything in the constitu- 
tion or laws of any State to the contrary notwithstanding." 

Upon this section two observations may be made at this time: first, the 
Constitution is supreme, an equality only shared by the laws of the United 
States made in pursuance thereof and by treaties of the United States; 
second, that the judges of the States, in interpreting laws, are to be bound 
by the supreme law of the land. 

No authority need be cited for the statement that the interpretation of 
a written instrument is a judicial question. The colony was bound by its 
charter, and all acts of the colony or colonists in excess of the charter as 
authoritatively interpreted, were void. The Constitution was to be the 
charter of the erstwhile colonies, now States of the Union, and all acts in 
excess of the powers, directly or indirectly granted to the Government of 
the Union, were to be null and void. In the case of the colony, the King in 
Council decided; in the case of the Union, the Supreme Court of the States. 

It was therefore essential that the judicial power should not be associated 
in the labors of the executive or legislative branch. The judges should not 
be members of the proposed but unadopted Council to revise the laws of the 
States, nor should they be members of an advisory council to the executive; 
for they could not be expected to pass upon the actions of one or the other 
in a spirit of detachment, if they had been directly, or, indeed, indirectly, 
concerned with either. Therefore, the judges should hold the scales of jus- Purely 

Judicial 

tice firmly in their hands, lest the legislative or executive should tip the bal- 
ance against the Constitution. The functions of the judges were to be and 
to remain judicial, and the judicial power, therefore, was to stand separate 
and apart from the legislative and the executive branches, which, in con- 
tradistinction to the judiciary, can be called the political branches of the 
Government. 

In the exercise of their respective powers, the legislative and the execu- 
tive could not be subject to the judiciary, because the exercise of a right 
depends upon the body possessing it. It may decide wisely or unwisely, but, 



376 THE UNITED STATES: A STUDY IN INTERNATION A.L ORGANIZATION 

having the power to decide, it necessarily must determine when it shall or 
shall not make a use of this power. The function of the judiciary can only 
be to determine, not the wisdom or the folly of the exercise of power, but 
whether the power exercised is or is not, in an appropriate case, within the 
power expressly or impliedly delegated by the Constitution to the Govern- 
ment of the Union. 

If the question is political, the judicial power will not pass upon it, as 

the legislative and executive branches of the Government are vested with its 

Political exercise. If, however, it is claimed by the legislative or executive to be 

Contrasted political, whcrcas in fact it is not, the judicial power extends to it, inasmuch 

Powerf as the legislative and executive departments of the Government can only 

exercise political, not judicial power; and even if the question be political, 

the judiciary must needs examine it in a proper and specific case, in order to 

determine whether it is within or without the grant of power. It was to be 

expected that cases of this nature would arise. They have frequently arisen, 

and can best be analyzed and defined by decisions of the Supreme Court of 

the United States. 

We may accept in the abstract the separation of judicial from political 
functions; but it is only through the concrete case that the line of demarca- 
tion, existing in theory, is rendered visible in fact. A few, therefore, of 
the many cases involving this question, will be considered, in order that the 
reader may frame for himself the definition of political power and draw 
the line between judicial power, on the one hand, and legislative and execu- 
tive power, on the other. 

In Foster v. Neilson (2 Peters, 253), decided in 1829, the Supreme 
Court had occasion to consider the question of international relations, the 
conduct of which is confided by the Constitution to the President, with the 
advice and consent of the Senate. A treaty thus made is, by the Constitu- 
tion, part of the supreme law of the land. As a law, the judicial power is 
extended to it, but only in the sense of interpreting it and applying it to a 
concrete case of a justiciable nature. The propriety of making the treaty 
depends upon the discretion of the President and of two-thirds of the 
Senators present during its consideration, in whom the treaty-making power 
is vested. 

The facts in the case are very complicated, and for present purposes it 
may be said that the plaintiffs claimed a large tract of land lying in 
Louisiana, about thirty miles east of the Mississippi River and in the pos- 
session of the defendant under a grant of the Spanish Governor, confirmed 
by the King of Spain. The defendant, admitting the grant, claimed that 
it was null and void in that the land in question was situated in territory 
which, before the grant, had been ceded to France and by France to the 



POWERS OF THE SUPREME COURT 377 

United States. From a judgment in favor of the defendant, had in the 
District Court of the United States for the Eastern District of Louisiana, 
the cause was heard before the Supreme Court upon a writ of error, Mr. 
Chief Justice Marshall thus stated the facts: 

The case presents this very intricate, and, at one time, very interesting 
question: To whom did the country between the Iberville and the Perdido 
rightfully belong, when the title now asserted by the plaintiffs was 
acquired ? 

This question has been repeatedly discussed, with great talent and 
research, by the government of the United States and that of Spain. The 
United States have perseveringly and earnestly insisted, that by the treaty 
of St. Ildefonso, made on the 1st of October, in the year 1800, Spain ceded 
the disputed territory as part of Louisiana to France ; and that France, by 
the treaty of Paris, signed on the 30th of April 1803, and ratified on the 
21st of October, in the same year, ceded it to the United States. Spain 
has with equal perseverance and earnestness maintained that her cession 
to France comprehended that territory only which was at that time, 
denominated Louisiana, consisting of the island of New Orleans, and the 
country she received from France west of the Mississippi.^ 

In view of these circumstances, Mr. Chief Justice Marshall said, on behalf 
of the court: 

However this may be, it is, we think, incontestable, that the American 
construction of the article, if not entirely free from question, is supported 
by arguments of great strength, which cannot be easily confuted. 

In a controversy between two nations, concerning national boundary, it is 
scarcely possible, that the courts of either should refuse to abide by the 
measures adopted by its own government. There being no common tri- 
bunal to decide between them, each determines for itself on its own rights, 
and if they cannot adjust their differences peaceably, the right remains with 
the strongest. The judiciary is not that department of the government, to 
which the assertion of its interests against foreign powers is confided ; and 
its duty commonly is to decide upon individual rights, according to those 
principles which the political departments of the nation have established. 
If the course of the nation has been a plain one, its courts would hesitate 
to pronounce it erroneous. 

We think, then, however individual judges might construe the treaty 
of St. Ildefonso, it is the province of the Court to conform its decisions to 
the will of the legislature, if that will has been clearly expressed. . . . 

After these acts of sovereign power over the territory in dispute, assert- 
ing the American construction of the treaty, by which the government claims 
it, to maintain the opposite construction in its own courts would certainly 
be an anomaly in the history and practice of nations. If those departments 
which are intrusted with the foreign intercourse of the nation, which assert 
and maintain its interests against foreign powers, have unequivocally 
asserted its rights of dominion OA^er a country of which it is in possession, 
and which it claims under a treaty ; if the legislature has acted on the con- 
struction thus asserted, it is not in its own courts that this construction is 

' Foster v. Neilson, 2 Peters, 299. 



378 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to be denied. A question like this respecting the boundaries of nations, is, 
as has been truly said, more a political than a legal question, and in its 
discussion, the courts of every country must respect the pronounced will 
of the legislature.^ 

Power^as to ^^ ^^^ court had stoppcd here, we should be perplexed to understand how 

'^'■^^*'^^ the judicial power extends to treaties, or why, if it does, the court refused 

to exercise the judicial power. This was not overlooked by the great Chief 
Justice, who stated, in a subsequent portion of his opinion, both the nature 
of a treaty as a contract in the world at large, as a law in the United States, 
and the conditions under which the judicial power attaches to it. Thus : 

A treaty is, in its nature, a contract between two nations, not a legislative 
act. It does not generally effect, of itself, the object to be accomplished; 
especially so far as its operation is infra-territorial ; but is carried into execu- 
tion by the sovereign power of the respective parties to the instrument. 

In the United States, a different principle is established. Our constitution 
declares a treaty to be the law of the land. It is, consequently, to be 
regarded in courts of justice as equivalent to an act of the legislature, when- 
ever it operates of itself without the aid of any legislative provision. But 
when the terms of the stipulation import a contract when either of the 
parties engages to perform a particular act, the treaty addresses itself to 
the political, not the judicial department; and the legislature must execute 
the contract, before it can become a rule for the court.^ 

The same question presented itself in a different form in Williams v. 
^Suffolk Insurance Co. (13 Peters, 415), decided by the Supreme Court in 
1839, in which it was held that the title of a foreign government to territory 
is a political question, to be decided by the political department, not by the 
judicial power of the United States. In delivering the opinion of the court, 
Mr. Justice McLean stated the facts involved, the rule of law, and the 
reason for the rule. First, as to the facts: 

As the fact is stated in the first point certified, that there is a contro- 
versy between this government and that of Buenos Ayres, whether the 
jurisdiction is rightful, which is assumed to be exercised over the Falkland 
Islands by the latter; and that this right is asserted on the one side and 
denied by the other, it will not be necessary to look into the correspondence 
between the two governments on the subject. To what sovereignty any 
island or country belongs, is a question which often arises before courts in 
the exercise of a maritime jurisdiction; and also in actions on policies of 
insurance.^ 

Next, as to the rule: 

And can there be any doubt, that when the executive branch of the 
government, which is charged with our foreign relations, shall, in its 

'2 Peters, 307, 309. 
'Ibid., 314. 
• 13 Peters, 420. 



POWERS OF THE SUPREME COURT 379 

correspondence with a foreign nation, assume a fact in regard to the sov- 
ereignty of any island or country, it is conclusive on the judicial depart- 
ment? And in this view, it is not material to inquire, nor is it the province 
of the court to determine, whether the executive be right or wrong. It is 
enough to know, that in the exercise of his constitutional functions, he had 
decided the question. Having done this, under the responsibilities which 
belong to him, it is obligatory on the people and government of the Union.^ 

Finally, as to the reason of the rule: 

If this were not the rule, cases might often arise, in which, on the most 
important questions of foreign jurisdiction, there would be an irrecon- 
cilable difference between the executive and judicial departments. By one 
of these departments, a foreign island or country might be considered as 
at peace with the United States ; whilst the other would consider it in a 
state of war. No well-regulated government has ever sanctioned a prin- 
ciple so unwise, and so destructive of national character. In the cases of 
Foster v. Neilson, 2 Pet. 253, 307, and Garcia v. Lee, 12 Ibid. 511, this 
court have laid down the rule, that the action of the political branches of 
the government in a matter that belongs to them, is conclusive. And we 
think, in the present case, as the executive, in his message, and in his cor- 
respondence with the government of Buenos Ayres, has denied the juris- 
diction which it has assumed to exercise over the Falkland islands ; the fact 
must be taken and acted on by this court as thus asserted and maintained.^ 

Ubid. 

' Ibid. 

In cases involving the action of the political departments of the government, the judi- 
ciary is bound by such action. Williams v. Suffolk Ins. Co., 13 Pet., 420; Garcia v. Lee, 
12 Pet., 511; Kennet v. Chambers, 14 How., 38; Foster v. Neilson, 2 Pet., 253; Nabob 
of the Carnatic v. The East hid. Co., 2 Ves., Jr., 60; Luther v. Borden, 7 How., 1; 
Rhode Island v. Massachusetts, 12 Pet., 714. 

The judiciary recognizes the condition of things with respect to the government of 
another country which once existed as still subsisting, unless the political department of 
its own government has decided otherwise. Kennet v. Chambers, 7 How., 38. (Mr. Justice 
Swayne in Phillil^s v. Payne, 92 U. S., 130, 132, decided in 1875.) 

Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political 
question, the determination of which by the legislative and executive departments of any 
government conclusively binds the judges, as well as all other officers, citizens and sub- 
jects of that government. This principle has always been upheld by this court, and has 
been affirmed under a great variety of circumstances. (Mr. Justice Gray, in Jones v. 
United .'States, 137 U, S., 202, 212, decided in 1890.) 

It appears that certain American citizens, asserting interests in the Isle of Pines, had 
contended that it belonged to the United States under the treaty, and the sixth clause of 
the Piatt Amendment, while not asserting an absolute claim of title on our part, gave 
opportunity for an examination of the question of ownership and its settlement through a 
treaty with Cuba. The Republic of Cuba has been governing the isle since May 20, 1902 — 
the present situation need not be discussed — and has made various improvements in admin- 
istration at the suggestion of our Government, but Congress has taken no action to the 
contrary to Cuba's title as superior to ours. 

It may be conceded that the action of both the political departments has not been suffi- 
ciently definite to furnish a conclusive interpretation of the treaty of peace as an original 
question, and as yet no agreement has been reached under the Piatt Amendment. The 
Isle of Pines continues at least de facto under the jurisdiction of the government of the 
Republic of Cuba, and that settles the question before us. ... It must be treated as 
foreign, for this Government has never taken, nor aimed to take, that possession in fact 
and in law which is essential to render it domestic. (Mr. Chief Justice Fuller in Percy v. 
Stranahan, 205 U. S., 257, 271-2, decided in 1907.) 



380 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The next case, entitled Luther v. Borden (7 Howard, 1), decided in 
1849, is a very important one, holding that the recognition of a government 
of a State of the American Union is, as in States of the society of nations, 
a political question, and as such is to be passed upon by the political, not by 
the judicial, department of the United States. As, however, the facts of 
the case are interesting, and as Mr. Chief Justice Taney is a recognized 
authority on all questions pertaining to the judicial power, the facts of the 
case and the opinion of the court are briefly given. The facts and the hold- 
ing of the court are thus stated in the head-note of the case: 

At the period of the American Revolution, Rhode Island did not, like 
the other States, adopt a new constitution, but continued the form of gov- 
ernment established by the charter of Charles the Second, making only such 
alterations, by acts of the Legislature, as were necessary to adapt it to their 
condition and rights as an independent State. . . . 

In 1841 a portion of the people held meetings and formed associations, 
which resulted in the election of a convention to form a new constitution, 
to be submitted to the people for their adoption or rejection. 

This convention framed a constitution, directed a vote to be taken upon 
it, declared afterwards that it had been adopted and ratified by a majority 
of the people of the State, and was the paramount law and constitution of 
Rhode Island. 

Under it, elections were held for Governor, members of the Legislature, 
and other officers, who assembled together in May, 1842, and proceeded to 
organize the new government. 

But the charter government did not acquiesce in these proceedings. On 
the contrary, it passed stringent laws, and finally passed an act declaring the 
State under martial law. 

In May, 1843, a new constitution, which had been framed by a con- 
vention called together by the charter government, went into operation, and 
has continued ever since. 

The question which of the two opposing governments was the legitimate 
one, viz. the charter government, or the government established by the volun- 
tary convention, has not heretofore been regarded as a judicial one in any of 
the State courts. The political department has always determined whether a 
proposed constitution or amendment was ratified or not by the people of the 
State, and the judicial power has followed its decision. 

The framers of the Constitution found it necessary to guarantee the 
existence of the States, as those States had renounced their diplomacy and a 
resort to war, and they did so in the following manner by section 4 of Article 
IV of that instrument: 



The United States shall guarantee to every State in this Union a Repub- 
lican Form of Government, and shall protect each of them against Invasion ; 
and on Application of the Legislature, or of the Executive (when the Legis- 
lature cannot be convened) against domestic Violence. 



POWERS OF THE SUPREME COURT 381 

Adverting to this state of affairs, Mr. Chief Justice Taney thus continues: 

Under this article of the Constitution it rests with Congress to decide 
what government is the estabHshed one in a State. For as the United 
States guarantee to each State a repubhcan government. Congress must 
necessarily decide what government is established in the State before 
it can determine whether it is republican or not. And when the senators 
and representatives of a State are admitted into the councils of the Union, 
the authority of the government under which they are appointed, as well 
as its republican character, is recognized by the proper constitutional au- 
thority. And its decision is binding on every other department of the govern- 
ment, and could not be questioned in a judicial tribunal. It is true that the 
contest in this case did not last long enough to bring the matter to this issue ; 
and as no senators or representatives were elected under the authority of 
the government of which Mr. Dorr was the head, Congress was not called 
upon to decide the controversy. Yet the right to decide is placed there, and 
not in the courts. 

So, too, as relates to the clause in the above-mentioned article of the 
Constitution, providing for cases of domestic violence. It rested with Con- 
gress, too, to determine upon the means proper to be adopted to fulfil this 
guarantee. They might, if they had deemed it most advisable to do so, have 
placed it in the power of a court to decide when the contingency had hap- 
pened which required the federal government to interfere. But Congress 
thought otherwise, and no doubt wisely; and by the act of February 28, 
1795, provided, that, " in case of an insurrection in any State against the 
government thereof, it shall be lawful for the President of the United States, 
on application of the legislature of such State or of the executive (when the 
legislature cannot be convened), to call forth such number of the militia of 
any other State or States, as may be applied for, as he may judge sufficient 
to suppress such insurrection." 

By this act, the power of deciding whether the exigency had arisen upon 
which the government of the United States is bound to interfere, is given 
to the President.^ 

The attitude of the Supreme Court towards political questions, and the 
reserve which becomes it on such occasions, are admirably pointed out by the 
Chief Justice in the concluding passage of his opinion : 

Much of the argument on the part of the plaintiff turned upon political 
rights and political questions, upon which the court has been urged to express 
an opinion. We decline doing so. The high power has been conferred on 
this court of passing judgment upon the acts of the State sovereignties, and 
of the legislative and executive branches of the federal government, and of 
determining whether they are beyond the limits of power marked out for 
them respectively by the Constitution of the United States. This tribunal, 
therefore, should be the last to overstep the boundaries which limit its own 
jurisdiction. And while it should always be ready to meet any question con- 
fided to it by the Constitution, it is equally its duty not to pass beyond its 
appropriate sphere of action, and to take care not to involve itself in discus- 
sions which properly belong to other forums. No one, we believe, has ever 

' Luther v. Borden, 7 Howard, 42-3. 



382 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

doubted the proposition, that, according to the institutions of this country, 
the sovereignty in every State resides in the people of the State, and that 
they may alter and change their form of government at their own pleasure. 
But whether they have changed it or not by abolishing an old government, 
and establishing a new one in its place, is a question to be settled by the 
political power. And when that power has decided, the courts are bound 
to take notice of its decision, and to follow it.^ 

In the Neilson case (supra, p. 376), the power, primarily lodged with 
the President, was shared with the Senate in its execution. In the Borden 
case (supra, p. 380), the power, primarily lodged in the Congress, is dele- 
gated to the President, who becomes the agent of the Congress in deciding 
the facts which justify intervention on behalf of the Government of the 
Union. In the Suffolk Ins. Co. Case (supra, p. 378), the power pertained to 
the President, as in the Prize Cases (2 Black, 635), decided by the Supreme 
Court in 1862. 

The facts in these cases are peculiarly American, and the case has an 
interest of its own far exceeding that of Luther v. Borden. The States of 
the Union were at war. The ports of the Southern States had been blockaded 
by Mr. Lincoln, then President of the United States. If the blockade was 
legal, that is to say, if the President had the right to close the ports of the 
Southern States by blockade without an act of Congress declaring war, then 
certain vessels, violating this blockade, could be properly seized and confis- 
cated; whereas, if a declaration of war by Congress was necessary, the 
proclamation would have been without binding effect, inasmuch as a blockade 
presupposes the existence of a state of war. The question, therefore, before 
the court was, as stated by Mr. Justice Grier, who delivered its opinion : 

Had the President a right to institute a blockade of ports in possession of 
ju""^''°"^^ persons in armed rebellion against the Government, on the principles of 

international law, as known and acknowledged among civilized States?^ 

It is to be observed that, by the Constitution, the law of nations is recognized' 
and that, by repeated decisions of the Supreme Court, it is declared to be 
a part of the law of the land. By the law of nations, a proclamation of 
blockade recognizes the existence of war and confers upon the parties to it 
both the rights and duties of belligerents in a war between nations. On the 
very point in question, Mr. Justice Grier said : 

Whether the President in fulfilling his duties, as Commander-in-chief, 
in suppressing an insurrection, has met with such armed hostile resistance, 
and a civil war of such alarming proportions as will compel him to accord 

' 7 Howard, 46-7. 

• The Prize Cases, 2 Black, 665. 



President's 
Rights under 



POWERS OF THE SUPREME COURT 383 

to them the character of belligerents, is a question to be decided by him, 
and this Court must be governed by the decisions and acts of the political 
department of the Government to which this power was entrusted. " He 
must determine what degree of force the crisis demands." The proclamation 
of blockade is itself official and conclusive evidence to the Court that a state 
of war existed which demanded and authorized a recourse to such a measure, 
under the circumstances peculiar to the case.^ 

If, however, the action of Congress was necessary in the case of a Civil 
War, which could not be declared as in the case of a war against a foreign 
nation, the learned Justice considered the acts of Congress relating to the 
war as a sufficient declaration of its existence. Speaking on behalf of the 
majority, he considered the act of Congress of 1861, " approving, legalizing, 
and making valid all the acts, proclamations, and orders of the President, &c., 
as if they had been issued and done under the previous express authority and 
direction of the Congress of the United States," as a ratification of the act 
of the President, if indeed one were needed. In this part of his opinion he 
relied upon the following statement of Mr. Justice Story in the case of 
Brown v. United States decided in 1814 (8 Cranch, 133) : 

I am perfectly satisfied that no subject can legally commit 

hostilities, or capture property of an enemy, when . . . the sovereign 

has prohibited it. But suppose, he does, I would ask, if the 

sovereign may not ratify his proceedings; and thus, by a retroactive opera- 
tion, give validity to them? 

The court therefore concluded, in the language of Mr. Justice Grier: 

On this first question therefore we are of the opinion that the Presi- 
dent had a right, jure belli, to institute a blockade of ports in possession of 
the States in rebellion, which neutrals are bound to regard.^ 

Further light is thrown upon this subject by three cases, in two of which 
the President of the United States is concerned; in the last, a State of the 
Union, in each of which the court refused to accept jurisdiction because the 
questions were political, and as such, beyond the scope of judicial power. 

In State of Mississippi v. Johnson, (4 Wallace, 475), decided in 1866, 
Mr. Chief Justice Chase delivering the unanimous opinion of the court, stated 
the facts as follows : 

A motion was made, some days since, in behalf of the State of Mis- 
sissippi, for leave to file a bill in the name of the State, praying this court 
perpetually to enjoin and restrain Andrew Johnson, President of the United 

* Ibid., 670. 
' Ibid., 671. 



384 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

States, and E. O. C. Ord, general commanding in the District of Mississippi 
and Arkansas, from executing, or in any manner carrying out, certain acts of 
Congress therein named. 

The acts referred to are those of March 2d and March 23d, 1867, com- 
monly known as the Reconstruction Acts. 

The Attorney-General objected to the leave asked for, upon the ground 
that no bill which makes a President a defendant, and seeks an injunction 
against him to restrain the performance of his duties as President, should 
be allowed to be filed in this court.^ 

The case was elaborately argued by counsel for Mississippi and by the 
Attorney General on behalf of the President, the counsel for Mississippi 
maintaining that the duty cast upon the President by the Acts in question 
was ministerial and that the performance of a ministerial act could be com- 
pelled by mandamus or enjoined by injunction. 

The case, as considered by the court was, as stated by the Chief Jus- 
tice, " Can the President be restrained by injunction from carrying into 
effect an act of Congress alleged to be unconstitutional?" 

The Chief Justice first defined a ministerial duty, then invoked adjudged 
cases in support of the definition, and finally distinguished the duty imposed 
upon the President by the Statute which, in his opinion and in the opinion 
of the court, required not merely discretion, but discretion of the highest pos- 
sible degree. Thus: 

A ministerial duty, the performance of which may, in proper cases, be 
required of the head of a department, by judicial process, is one in respect 
to which nothing is left to discretion. It is a simple, definite duty, arising 
under conditions admitted or proved to exist, and imposed by law. 

For this he vouched, in first instance, the case of Marbury v. Madison, (1 
Cranch, 137) of which he said: 

A citizen had been nominated, confirmed, and appointed a justice of the 
peace for the District of Columbia, and his commission had been made out, 
signed, and sealed. Nothing remained to be done except delivery, and the 
duty of delivery was imposed by law on the Secretary of State. It was held 
that the performance of this duty might be enforced by mandamus issuing 
from a court having jurisdiction.^ 

And in the second, the case of Kendal, Postmaster-General v. Stockton & 
Stokes, (12 Peters, 527), the Chief Justice said: 

An act of Congress had directed the Postmaster-General to credit Stock- 
ton & Stokes with such sums as the Solicitor of the Treasury should find 
due to them ; and that officer refused to credit them with certain sums, so 

* 4 Wallace, 497-8. 
" Ibid., 498. 



POWERS OF THE' SUPREME COURT 385 

found due. It was held that the crediting of this money was a mere minis- 
terial duty, the performance of which might be judicially enforced.'- 

After stating that in each of thes« cases nothing was left to discretion, that 
there was no room for the exercise of judgment, and that the law required 
the performance of a single specific act rightly compellable by mandamus, 
the Chief Justice thus distinguished the case before him : 

Very different is the duty of the President in the exercise of the power 
to see that the laws are faithfully executed, and among these laws the acts 
named in the bill. By the first of these acts he is required to assign gen- 
erals to command in the several military districts, and to detail sufficient 
military force to enable such officers to discharge their duties under the law. 
By the supplementary act, other duties are imposed on the several com- 
manding generals, and these duties must necessarily be performed under 
the supervision of the President as commander-in-chief. The duty thus 
imposed on the President is in no just sense ministerial. It is purely execu- 
tive and political. 

An attempt on the part of the judicial department of the government to 
enforce the performance of such duties by the President might be justly 
characterized, in the language of Chief Justice Marshall, as " an absurd and 
excessive extravagance." 

It is true that in the instance before us the interposition of the court is 
not sought to enforce action by the Executive under constitutional legis- 
lation, but to restrain such action under legislation alleged to be unconstitu- 
tional. But we are unable to perceive that this circumstance takes the case 
out of the general principles which forbid judicial interference with the 
exercise of Executive discretion. 

After declaring that the Congress is the Legislative Department of the Gov- 
ernment, that the President is the Executive Department, that: 

Neither can be restrained in its action by the judicial department ; though 
the acts of both, when performed, are, in proper cases, subject to its 
cognizance. 

The Chief Justice thus stated the reason obtaining in this category of cases: 

The impropriety of such interference will be clearly seen upon considera- 
tion of its possible consequences. 

Suppose the bill filed and the injunction prayed for allowed. If the 
President refuse obedience, it is needless to observe that the court is with- 
out power to enforce its process. If, on the other hand, the President com- 
plies with the order of the court and refuses to execute the acts of Con- 
gress, is it not clear that a collision may occur between the executive and 
legislative departments of the government? May not the House of Repre- 
sentatives impeach the President for such refusal? And in that case could 
this court interfere, in behalf of the President, thus endangered by com- 

* Ibid., 499. 



386 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

pliance with its mandate, and restrain by injunction the Senate of the United 
States from sitting as a court of impeachment? Would the strange spec- 
tacle be offered to the public world of an attempt by this court to arrest 
proceedings in that court? 

These questions answer themselves.^ 

The State of Georgia presented practically the same question in a dif- 
ferent form. If the President of the United States might not be enjoined 
why not the Secretary of War and the Commanding Officers of the Army 
from carrying into effect the provisions of the Reconstruction Acts? This 
counsel for Georgia attempted to do in the State of Georgia v. Stanton, (6 
Wallace, 50), decided in the December term, 1867, adverse to the contention 
of Georgia, and in accordance with the opinion of the Court in the case of 
Mississippi v. Johnson. 

Mr. Justice Nelson who delivered the opinion of the court first noted the 
objection that the questions presented for adjudication were " political and 
not judicial, and therefore, not the subject of judicial cognizance"; he next 
adverted to the importance of the objection, and continued : 

This distinction results from the organization of the government into the 
three great departments, executive, legislative, and judicial, and from the 
assignment and limitation of the powers of each by the Constitution. 

The judicial power is vested in one supreme court, and in such inferior 
courts as Congress may ordain and establish : the political power of the 
government in the other two departments. 

The distinction between judicial and political power is so generally ac- 
knowledged in the jurisprudence both of England and of this country, that 
we need do no more than refer to some of the authorities on the subject. 
They are all in one direction. (Nabob of Carnatic v. The East India Co., 
1 Vesey, Jr., 375-393, S. C, 2 Id. 56-60; Penn v. Lord Baltimore, 1 Vesey, 
446-7; Nezv York v. Connecticut, 4 Dallas, 4-6; The Cherokee Nation v. 
Georgia, 5 Peters, 1, 20, 29, 30, 51, 75; The State of Rhode Island v. The 
State of Massachusetts, 12 lb., 657, 733, 734, 737, 738.)^ 

He then took up The State of Rhode Island v. The State of Massachusetts, 
which was regarded by counsel as an exception, and by an examination of 
the opinion of Mr. Justice Baldwin in that case, showed that the question 
was judicial in its nature, and that it was only political in the sense that the 
decision of the boundary between the two States jnvolved sovereignty and 
political rights as incident to the ownership of the land. He quoted with 
approval the following statement from Mr. Justice Baldwin's opinion : 

Taking the case on the bill and plea, the question is, whether the stake 
set up on Wrentham Plain by Woodward and Saffrey, in 1842, is the true 
point from which to run an east and west line as the compact boundary 

M Wallace, SOO-1. 
* 6 Wallace, 71. 



POWERS OF THE SUPREME COURT 387 

between the States. In the first aspect of the case it depends on a fact ; in 
the second, on the law of equity, whether the agreement is void or valid; 
neither of which present a political controversy, but one of an ordinary 
judicial nature of frequent occurrence in suits between individuals.^ 

Having thus shown that a political question was not involved in Rhode 
Island V. Massachusetts, and that the court did not overstep the line sepa- 
rating the judicial from the political departments of the Government, Mr. 
Justice Nelson proceeded to quote, with the approval of the court, the por- 
tion of Mr. Justice Baldwin's opinion in which that learned Justice laid down 
in clear, precise, and unassailable terms, the distinction between judicial and 
political power : 

From the time of such submission the question ceases to be a political 
one, to be decided by the sic volo, sic jubeo, of political power. It comes 
to the court to be decided by its judgment, legal discretion, and solemn 
consideration of the rules of law, appropriate to its nature as a judicial 
question, depending on the exercise of judicial powers, as it is bound to act 
by known and settled principles of national or municipal jurisprudence, as 
the case requires.^ 

And in commenting upon this passage, he said : 

that the question thus submitted by the sovereign, or state, to a judicial 
determination, must be one appropriate for the exercise of judicial power; 
such as a question of boundary, or as in the case of Pcnn v. Lord Baltimore, 
a contract between the parties in respect to their boundary. Lord Hard- 
wicke places his right in that case to entertain jurisdiction upon this ground.' 

Mr. Justice Nelson, and the Court for which he spoke, considered as 
more, and indeed most in point, the case of The Cherokee Nation v. The State 
of Georgia, (5 Peters, 1), decided in 1831, seven years previous to that of 
Rhode Island v. Massachusetts. In that case, the Cherokee Nation then re- 
siding within the limits of Georgia prayed the Supreme Court that that State 
be enjoined from extending its laws over the Cherokee Nation whose exist- 
ence as a separate and distinct political community had been recognized by 
the United States. The Court dismissed the bill on the ground that the Su- 
preme Court could not take original jurisdiction of the case because the 
Cherokee Nation was neither a foreign State nor a member of the American 
Union, but a dependent domestic State which did not therefore have the 
right to file an original bill in the Supreme Court, as a foreign nation or 
State of the American Union possessed under the Constitution. There was, 
however, an added reason in the opinion of the majority of the Court why 

'Ibid., 72. 
' Ibid. 
• Ibid.. 73. 



388 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

jurisdiction should not be asumed even if the Cherokee Nation could file its 
bill, which was thus stated by Mr. Chief Justice Marshall : 

That the part of the bill which respects the land occupied by the Indians, 
and prays the aid of the court to protect their possessions, may be more 
doubtful. The mere question of right might, perhaps, be decided by this 
court in a proper case with proper parties. But the court is asked to do 
more than decide on the title. The bill requires us to control the legislature 
of Georgia, and to restrain the exertions of its physical force. The propriety 
of such an interposition by the court may be well questioned. It savors too 
much of the exercise of political power, to be within the province of the 
judicial department.^ 

A concurring opinion was delivered by Mr. Justice Johnson, in which he 
doubted the propriety of considering the Cherokee Nation even as a domestic 
State, and an opinion by Mr. Justice Baldwm denying to them that equality. 

A very elaborate dissenting opinion, delivered by Mr. Justice Thompson, 
in which Mr. Justice Story concurred, held that the Cherokee Nation was a 
nation in the sense of the Constitution and that the Court could take juris- 
diction of the bill in so far as the parties to the controversy were concerned, 
but admitted that the remedy could only be granted in part, as the question 
was largely political. On this point, Mr. Justice Thompson said : 

For the purpose of guarding against any erroneous conclusions, it is 
proper I should state, that I do not claim for this court, the exercise of 
jurisdiction upon any matter properly falling under the denomination of 
political power. Relief to the full extent prayed for by the bill may be be- 
yond the reach of this court. Much of the matters therein contained by 
way of complaint, would seem to depend for relief upon the exercise of 
political power ; and, as such, appropriately devolving upon the executive, 
and not the judicial department of the government. This court can grant 
relief so far, only, as the rights of persons or property are drawn in ques- 
tion, and have been infringed.^ 

This and the following portion of his opinion in that case are quoted by Mr. 
Justice Nelson on behalf of the Court: 

I certainly do not claim, as belonging to the judiciary, the exercise of 
poHtical power. That belongs to another branch of the Government. The 
protection and enforcement of many rights secured by treaties, most cer- 
tainly do not belong to the judiciary. It is only where the rights of persons 
or property are involved, and when such rights can be presented under some 
judicial form of proceedings, that courts of justice can interpose relief. 
This court can have no right to pronounce an abstract opinion upon the 
constitutionality of a State law. Such law must be brought into actual, or 

" 6 Wallace, 74. 
* Ibid., 74-5. 



POWERS OF THE SUPREME COURT 389 

threatened operation upon rights properly falling under judicial cognizance, 
or a remedy is not to be had here.^ 

Mr. Justice Nelson thereupon stated that by the bill the Court is : 

called upon to restrain the defendants, who represent the executive au- 
thority of the government, from carrying into execution certain acts of 
Congress, inasmuch as such execution would annul, and totally abolish the 
existing State government of Georgia, and establish another and different 
one in its place ; in other words, would overthrow and destroy the corporate 
existence of the State, by depriving it of all the means and instrumentalities 
whereby its existence might, and, otherwise would, be maintained.^ 

Testing the prayer of the bill by the principles laid down in the previous 
cases, Mr. Justice Nelson thus continued and concluded : 

That these matters, both as stated in the body of the bill, and, in the 
prayers for relief, call for the judgment of the court upon political ques- 
tions, and, upon rights, not of persons or property, but of a political char- 
acter, will hardly be denied. For the rights for the protection of which our 
authority is invoked, are the rights of sovereignty, of political jurisdiction, 
of government, of corporate existence as a State, with all its constitutional 
powers and privileges. No case of private rights or private property in- 
fringed, or in danger of actual or threatened infringement, is presented by 
the bill, in a judicial form, for the judgment of the court. 

It is true, the bill, in setting forth the political rights of the State, and 
of its people to be protected, among other matters, avers, that Georgia owns 
certain real estate and buildings therein. State capitol, and executive man- 
sion, and other real and personal property; and that putting the acts of 
Congress into execution, and destroying the State, would deprive it of the 
possession and enjoyment of its property. But, it is apparent, that this 
reference to property and statement concerning it, are only by way of show- 
ing one of the grievances resulting from the threatened destruction of the 
State, and in aggravation of it, not as a specific ground of relief. This 
matter of property is neither stated as an independent ground, nor is it 
noticed at all in the prayers for relief. Indeed the case, as made in the 
bill, would have stopped far short of the relief sought by the State, and its 
main purpose and design given up, by restraining its remedial effect, simply 
to the protection of the title and possession of its property. Such relief 
would have called for a very different bill from the one before us. 

Having arrived at the conclusion that this court, for the reasons above 
stated, possesses no jurisdiction over the subject-matter presented in the 
bill for relief, it is unimportant to examine the question as it respects 
jurisdiction over the parties defendants.* 

In the very recent case of Pacific Telephone Company v. Oregon, (223 
U. S., 118) decided in 1912, a political question was again before the Su- 
preme Court, in what may be considered a leading case, and the opinion of 

' Ibid., 75. 
' Ibid.. 76. 
'Ibid., 77. 



390 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Mr. Chief Justice White, for a unanimous court, is a careful analysis of 
the elements which in that case formed the political question, because of 
which the court refused to entertain jurisdiction. 

The facts in the case were, in so far as they are material to the present 
purpose, that the State of Oregon, in 1902, amended its Constitution, intro- 
ducing what is called the Initiative and Referendum. 

" As to the first," to quote the language of Chief Justice White in deliver- 
ing the opinion of the Court, " the initiative, it suffices to say that a stated, 
number of voters were given the right at any time to secure a submission to 
popular vote for approval of any matter which it was desired to have enacted 
into law, and providing that the proposition thus submitted when approved 
by popular vote should become the law of the State, The second, the referen- 
dum, provided for a reference to a popular vote, for approval or disapproval, 
of any law passed by the legislature, such reference to take place either as the 
result of the action of the legislature itself or of a petition filed for that pur- 
pose by a specified number of voters." ^ That is to say, the Initiative pro- 
vided for direct legislation by the people, instead of by a select body of per- 
sons representing the people in the State Legislature, and the Referendum 
for a direct and specific confirmation or rejection by the people of acts of the 
Legislature, instead of the approval or disapproval of its measures by the 
slower process of defeating or reelecting members of the Legislature, whose 
conduct the people condemned or commended. 

By resorting to the Initiative a law was submitted to and voted by the 
people in 1903, taxing certain classes of corporations, by virtue of which 
telephone and telegraph companies were taxed two per centum as an annual 
license, upon their gross revenue derived from business done within the 
State; and penalties were provided for non-payment in case of delinquency. 

The Pacific Telephone and Telegraph Company, an Oregon corporation 
engaged in business in that State, made return of its gross receipts as required 
by the law, and was assessed two per centum upon the amount thereof. 
Upon failure to pay the tax, suit was brought by the State, to enforce payment 
and to recover the statutory penalties for delinquency. 

The Company pleaded among other defenses, that government by Initia- 
tive and Referendum was not the Republican form of government under the 
Constitution, and that it was in conflict with the fourth section of Article 
IV thereof, providing that, " The United States shall guarantee to every 
State in this Union a Republican Form of Government." 

Inasmuch as the legality of the Initiative and Referendum was the basis 
of the defense, the case reduced itself, to quote the language of the Chief 
Justice : 

'223 U. S., 134. 



POWERS OF THE SUPREME COURT 391 

to the single issue whether the enforcement of that provision, because of 
its political character, is exclusively committed to Congress or is judicial in 
its character.^ 

After calling attention to the fact that the defense, if admitted, would 
not only affect the present Statute, but every other passed " in Oregon since 
the adoption of the initiative and referendum," the Chief Justice proceeded 
thus to examine the nature and the consequence of defendant's contention : 

Let us briefly fix the inconceivable expansion of the judicial power and 
the ruinous destruction of legislative authority in matters purely political 
which would necessarily be occasioned by giving sanction to the doctrine 
which underlies and would be necessarily involved in sustaining the proposi- 
tions contended for. First. That however perfect and absolute may be 
the establishment and dominion in fact of a state government, however com- 
plete may be its participation in and enjoyment of all its powers and rights as 
a member of the national Government, and however all the departments of 
that Government may recognize such state government, nevertheless every 
citizen of such State or person subject to taxation therein, or owing any 
duty to the established government, may be heard, for the purpose of 
defeating the payment of such taxes or avoiding the discharge of such duty, 
to assail in a court of justice the rightful existence of the State. Second. 
As a result, it becomes the duty of the courts of the United States, where 
such a claim is made, to examine as a justiciable issue the contention as to 
the illegal existence of a State and if such contention be thought well founded 
to disregard the existence in fact of the State, of its recognition by all the 
departments of the Federal Government, and practically award a decree 
absolving from all obligation to contribute to the support of or obey the 
laws of such established state government. And as a consequence of the 
existence of such judicial authority a power in the judiciary must be im- 
plied, unless it be that anarchy is to ensue, to build by judicial action upon 
the ruins of the previously established government a new one, a right which 
by its very terms also implies the power to control the legislative department 
of the Government of the United States in the recognition of such new gov- 
ernment and the admission of representatives therefrom, as well as to strip 
the executive department of that government of its otherwise lawful and 
discretionary authority.^ 

Still further pursuing this phase of the subject the Chief Justice con- 
tinued : 

Do the provisions of § 4, Art. IV, bring about these strange, far-reaching 
and injurious results? That is to say, do the provisions of that Article 
obliterate the division between judicial authority and legislative power upon 
which the Constitution rests? In other words, do they authorize the judiciary 
to substitute its judgment as to a matter purely political for the judgment 
of Congress on a subject committed to it and thus overthrow the Constitu- 

'Ibid.. 137. 
'Ibid., 141-2. 



392 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

tion upon the ground that thereby the guarantee to the States of a govern- 
ment republican in form may be secured, a conception which after all rests 
upon the assumption that the States are to be guaranteed a government 
republican in form by destroying the very existence of a government repub- 
lican in form in the Nation. 

To state such consequences would seem to refute the premises upon which 
they were based, and from which they were drawn; and it was not necessary 
for the Chief Justice to answer theoretical arguments which had been re- 
jected in the great and leading case of Luther v. Borden, (7 Howard, 1), 
decided in 1849, in which the question involved in the guarantee of republican 
government was conclusively shown to be political, not judicial. After an 
elaborate statement of the facts involved in the case, Mr. Chief Justice 
White quoted with approval the following language of Chief Justice Taney, 
in that case: 

Under this article of the constitution it rests with congress to decide what 
government is the established one in a State. For, as the United States 
guarantee to each State a republican government, congress must necessarily 
decide what government is established in the State before it can determine 
whether it is republican or not. And when the senators and representatives 
of a State are admitted into the councils of the Union, the authority of the 
government under which they are appointed, as well as its republican char- 
acter, is recognized by the proper constitutional authority. And its decision 
is" binding on every other department of the government, and could not be 
questioned in a judicial tribunal. It is true that the contest in this case 
did not last long enough to bring the matter to this issue ; and as no sena- 
tors or representatives were elected under the authority of the government 
of which Mr. Dorr was the head, Congress was not called upon to decide the 
controversy. Yet the right to decide is placed there, and not in the courts.^ 

Stating in agreement with Mr. Chief Justice Taney, that if the judicial 
power extended thus far it is " a guarantee of anarchy, and not of order," 
Mr. Chief Justice White thus concluded the opinion of the Court, which 
can well be taken as the last word on this difficult and perplexing sub- 
ject : 

It is indeed a singular misconception of the nature and character of our 
constitutional system of government to suggest that the settled distinction 
which the doctrine just stated points out between judicial authority over 
justiciable controversies and legislative power as to purely political ques- 
tions tends to destroy the duty of the judiciary in proper cases to enforce 
the Constitution. The suggestion but results from failing to distinguish 
between things which are widely different, that is, the legislative duty to 
determine the political questions involved in deciding whether a state gov- 
ernment republican in form exists, and the judicial power and ever-present 
duty whenever it becomes necessary in a controversy properly submitted to 

^223 U. S.. 147. 



POWERS OF THE SUPREME COURT 393 

enforce and uphold the applicable provisions of the Constitution as to each 
and every exercise of governmental power. 

How better can the broad lines which distinguish these two subjects be 
pointed out than by considering the character of the defense in this very 
case? The defendant company does not contend here that it could not have 
been required to pay a license tax. It does not assert that it was denied an 
opportunity to be heard as to the amount for which it was taxed, or that 
there was anything inhering in the tax or involved intrinsically in the law 
which violated any of its constitutional rights. If such questions had been 
raised they would have been justiciable, and therefore would have required 
the callmg into operation of judicial power. Instead, however, of doing 
any of these things, the attack on the statute here made is of a wholly dif- 
ferent character. Its essentially political nature is at once made manifest by 
understanding that the assault which the contention here advanced makes it 
not on the tax as a tax, but on the State as a State. It is addressed to the 
framework and political character of the government by which the statute 
levying the tax was passed. It is the government, the political entity, which 
(reducing the case to its essence) is called to the bar of this court, not for 
the purpose of testing judicially some exercise of power assailed, on the 
ground that its exertion has injuriously affected the rights of an individual 
because of repugnancy to some constitutional limitation, but to demand of 
the State that it establish its right to exist as a State, republican in form. 

As the issues presented, in their very essence, are, and have long since 
by this court been, definitely determined to be political and governmental, 
and embraced within the scope of the powers conferred upon Congress, and 
not therefore within the reach of judicial power, it follows that the case 
presented is not within our jurisdiction, and the writ of error must there- 
fore be, and it is, dismissed for want of jurisdiction.^ 

Ibid., 149-51. 



XIX 
EXTENT AND EXERCISE OF JUDICIAL POWER 

This Constitution, and the Laws of the United States which shall be made in Pursuance 
thereof; and all Treaties made, or which shall be made, under the Authority of the United 
States, shall be the supreme Law of the Land ; and the judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith- 
standing. {Constitution of the United States, Article VI, paragraph 2.) 

The Judicial power of the United States shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of the United States by Citizens of 
another State, or by Citizens or Subjects of any Foreign State. {Constitution of the 
United States, lith Amendment, adopted 1798.) 

By the constitution, it was ordained that this judicial power, in cases where a state 
was a party, should be exercised by this Court as one of original jurisdiction. The states 
waived their exemption from judicial power, as sovereigns by original and inherent right, 
by their own grant of its exercise over themselves in such cases, but which they would 
not grant to any inferior tribunal. By this grant, this Court has acquired jurisdiction over 
the parties in this cause, by their own consent and delegated , authority ; as their agent for 
executing the judicial power of the United States in the cases specified. {Mr. Justice 
Baldwin in Rhode Island v. Massachusetts, 12 Peters, 657, 720, decided in 1838.) 

Our next inquiry will be, whether we have jurisdiction of the subject matters of the 
suit, to hear and determine them. 

That it is a controversy between two states, cannot be denied; and though the constitu- 
tion does not, m terms, extend the judicial power to all controversies between two or 
more states, yet it in terms excludes none, whatever may be their nature or subject. It is, 
therefore, a question of construction, whether the controversy in the present case is within 
the grant of judicial power. {Mr. Justice Baldwin in State of Rhode Island v. State of 
Massachusetts, 12 Peters, 657, 721, decided in 1838.) 

The founders of our government could not but know, what has ever been, and is 
familiar to every statesman and jurist, that all controversies between nations, are, in this 
sense, political, and not judicial, as none bufthe sovereign can settle them. . . . None can 
be settled without war or treaty, which is by political power ; but under the old and new 
confederacy they could and can be settled by a court constituted by themselves, as their 
own substitutes, authorized to do that for states, which states alone could do before. We 
are thus pointed to the true boundary line between political and judicial power, and 
questions. A sovereign decides by his own will, which is the supreme law within his own 
boundary; 6 Peters, 714; 9 Peters, 748; a court, or judge, decides according to the law 
prescribed by the sovereign power, and that law is the rule for judgment. The submission 
by the sovereigns, or states, to a court of law or equity, of a controversy between them, 
without prescribing any rule of decision, gives power to decide according to the appropriate 
law of the case; 11 Ves. 294; which depends on the subject matter, the source and 
nature of the claims of the parties, and the law which governs them. From the time of 
such submission, the question ceases to be a political one, to be decided by the sic volo, sic 
jubeo, of political power; it comes to the court to be decided by its judgment, legal 
discretion, and solemn consideration of the rules of law appropriate to its nature as a 
judicial question, depending on the exercise of judicial power; as it is bound to act by 
known and settled principles of national or municipal jurisprudence, as the case requires. 

It has never been contended that prize courts of admiralty jurisdiction, or questions 
before them, are not strictly judicial ; they decide on questions of war and peace, the law 
of nations, treaties, and the municipal laws of the capturing nation, by which alone they 
are constituted; a fortiori, if such courts were constituted by a solemn treaty between the 
State under whose authority the capture was made, and the state whose citizens or subjects 

394 



EXTENT AND EXERCISE OF JUDICIAL POWER 395 

suffer by the capture. All nations submit to the jurisdiction of such courts over their 
subjects, and hold their final decrees conclusive on rights of property. 6 Cr. 284-5. 

These considerations lead to the definition of political and judicial power and ques- 
tions; the former is that which a sovereign or state exerts by his or its own authority, 
as reprisal and confiscation; 3 Ves. 429: the latter is that which is granted to a court or 
judicial tribunal. So of controversies between states ; they are in their nature political, 
when the sovereign or state reserves to itself the right of deciding on it ; makes it the 
"subject of a treaty, to be settled as between states independent," or "the foundation 
of representations from state to state." This is political equity, to be adjudged by the 
parties themselves, as contradistinguished from judicial equity, administered by a court of 
justice, decreeing the equum et bonum of the case, let who or what be the parties before 
them. (Mr. Justice Baldwin in Rhode Island v. Massachusetts, 12 Peters, 637, 736-738, 
decided in 1838.) 

The grant of judicial power is not confined to the administration of laws passed in 
pursuance to the provisions of the Constitution, nor confined to the interpretation of such 
laws; but, by the very terms of the grant, the Constitution is under their view when any 
act of Congress is brought before them, and it is their duty to declare the law void, and 
refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. 
And as the final appellate power in all such questions is given to this court, controversies 
as to the respective powers of the United States and the States, instead of being deter- 
mined by military and physical force, are heard, investigated, and finally settled, with the 
calmness and deliberation of judicial inquiry. And no one can fail to see, that if such an 
arbiter had not been provided, in our complicated system of government, internal tran- 
quillity could not have been preserved; and if such controversies were left to arbitrament 
of physical force, our Government, State and National, would soon cease to be Governments 
of laws, and revolutions by force of arms would take the place of courts of justice and 
judicial decisions. 

In organizing such a tribunal, it is evident that every precaution was 'taken, which 
human wisdom could devise, to fit it for the high duty with which it was intrusted. . . . 
This tribunal, therefore, was erected, and the powers of which we have spoken conferred 
upon it, not by the Federal Government, but by the people of the States, who formed and 
adopted that Government, and conferred upon it all the powers, legislative, executive, and 
judicial, which it now possesses. And in order to secure its independence, and enable it 
faithfully and firmly to perform its duty, it engrafted it upon the Constitution itself, and 
declared that this court should have appellate power in all cases arising under the Con- 
stitution and laws of the United States. So long, therefore, as this Constitution shall 
endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceed- 
ing the angry and irritating controversies between sovereignties, which in other countries 
have been determined by the arbitrament of force. {Chief Justice Taney in Ableman v. 
Booth, 21 Howard, 506, 520-521, decided in 1858.) 

A court is a tribunal presided over by one or more judges, for the exercise of such 
judicial power as has been conferred upon it by law. Blackstone, following Coke, defines 
it as "a place where justice is judicially administered" (3 Bl. Com. 23); but it is also 
essential that this place be designated by law, and that the person or persons authorized 
to administer justice be at that place for the purpose of administering justice at such 
times as may be also designated by law. The times fixed by law for the transaction of 
judicial business are called " terms," and the periods between the end of one term and 
the beginning of the next are called "vacations." These "terms" vary in different juris- 
dictions according to the statutes by which they are fixed, in some states ending at fixed 
dates and in others continuing until the commencement of a succeeding term. {Mr. 
Justice Harrison in Von Schmidt v. Widber, gg California, 51J, 512, decided in 1893.) 

As jurisdiction is the first question which must arise in every cause, I have confined my 
examination of this, entirely to that point, and that branch of it which relates to the 
capacity of the plaintiffs to ask the interposition of this court. . . . 

In my opinion there is no plaintiff in this suit ; and this opinion precludes any examina- 
tion into the merits of the bill, or the weight of any minor objections. My judgment 
stops me at the threshold, and forbids me to examine into the acts complained of. (Mr. 
Justice Baldwin in Cherokee Nation v. State of Georgia, 5 Peters, i, 31-32, decided in 
183 1.) 

The power to hear and determine a cause is jurisdiction ; it is " coram judice," when- 
ever a case is presented which brings this power into action; if the petitioner states such 



396 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

a case in this petition, that on a demurrer, the court would render judgment in his favor, 
it is an undoubted case of jurisdiction ; whether on an answer denying and putting in issue 
the allegations of the petition, the petitioner makes out his case, is the exercise of juris- 
diction conferred by the filing of a petition containing all the requisites and in the manner 
prescribed by law. {Mr. Justice Baldwin, in United States v. Arredondo, 6 Peters, 691, 
709, decided in 1832.) 

The case is now before us for consideration, on a motion by the defendant, to dismiss 
the bill for want of jurisdiction in the cause. 

However late this objection has been made, or may be made in any cause, in an 
inferior or appellate court of the United States, it must be considered and decided, before 
any court can move one further step in the cause ; as any movement is necessarily the 
exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject 
matter in controversy between parties to a suit, to adjudicate or exercise any judicial 
power over them ; the question is, whether on the case before a court, their action is 
judicial or extra-judicial; with or without the authority of law, to render a judgment or 
decree upon the rights of the litigant parties. If the law confers the power to render 
a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed 
between the parties, and with which is the right of the case, is judicial action, by hearing 
and determining it. 6 Peters, 709 ; 4 Russell, 415 ; 3 Peters, 203-7. 

A motion to dismiss a cause pending in the courts of the United States, is not analogous 
to a plea to the jurisdiction of a court of common law or equity in England; there the 
superior courts have a general jurisdiction over all persons within the realm, and all 
causes of action between them. It depends on the subject matter, whether the jurisdiction 
shall be exercised by a court of law or equity ; but that court, to which it appropriately 
belongs, can act judicially upon the party and the subject of the suit; unless it shall be 
made apparent to the court that the judicial determination of the case has been withdrawn 
from the court of general jurisdiction, to an inferior and limited one. . . . 

But as this Court is one of limited and special original jurisdiction, its action must be 
confined to the particular cases, controversies, and parties over which the constitution 
and laws have authorized it to act ; any proceeding without the limits prescribed, is coram 
non judice, and its action a nullity. 10 Peters, 474; S. P. 4 Russ. 415. And whether the 
want or excess of power is objected by a party, or is apparent to the Court, it must 
surcease its action, or proceed extra-judicially. 

Before we can proceed in this cause we must, therefore, inquire whether we can hear 
and determine the matters in controversy between the parties, who are two states of this 
Union, sovereign within their respective boundaries, save that portion of power which they 
have granted to the federal government, and foreign to each other for all but federal 
purposes (A[r. Justice Baldivin in State of Rhode Jsland v. State of Massachusetts, 12 
Peters, 657, 718, 720, decided in 1838.) 

The power to hear and determine a cause is jurisdiction ; and it is coram judice when- 
ever a case is presented which brings this power into action. But before this power can 
be affirmed to exist, it must be made to appear that the law has given the tribunal capacity 
to entertain the complaint against the person or thing sought to be charged or affected; 
that such complaint has actually been preferred; and that such person or thing has been 
properly brought before the tribunal to answer the charge therein contained. When these 
appear, the jurisdiction has attached; the right to hear and determine is perfect; and the 
decision of every question thereafter arising is but the exercise of the jurisdiction thus 
conferred; and whether determined rightfully or wrongfully, correctly or erroneously, is 
alike immaterial to the validity, force, and effect of the final judgment, when brought 
collaterally in question. (Mr. Justice Ranney in Sheldon v. Newton, 3 Ohio St. 494, 499, 
decided in 1854.) 

The cases in this court show that the framers of the Constitution did provide, by that 
instrument, for the judicial determination of all cases in law and equity between two or 
more States, including those involving questions of boundary. Did they omit to provide 
for the judicial determination of controversies arising between the United States and one 
or more of the States of the Union? This question is in effect answered by United States 
v. North Carolina. 136 U. S. 211. That was an action of debt brought in this court by the 
United States against the State of North Carolina, upon certain bonds issued by that 
State. The State appeared, the case was determined here upon its merits, and judgment 
was rendered for the State. It is true that no question was made as to the jurisdiction of 
this court, and nothing was therefore said in the opinion upon that subject. But it did 
not escape the attention of the court, and the judgment would not have been rendered 



EXTENT AND EXERCISE OF JXJDICIAL POWER 397 

except upon the theory that this court has original jurisdiction of a suit by the United 
States against a State. As, however, the question of jurisdiction is vital in this case, and 
is distinctly raised, it is proper to consider it upon its merits. (Mr. Justice Harlan in 
United States v. State of Texas, 143 United States, 621, 642, decided in 1892.) 

We think these proceedings were instituted under a mistaken apprehension of the proper 
functions of the judiciary. Courts of justice are established to try questions pertaining to 
the rights of individuals. An action is the form of a suit given by law for the recovery 
of that which is one's due, or a legal demand of one's right. . . . But courts will not go 
out of their proper sphere to determine the constitutionality or unconstitutionality of a 
law. They will not declare a law unconstitutional or void in the abstract, for that would 
be interfering with the legislative power, which is separate and distinct . . . But unless 
some individual right directly affecting the parties litigant is thus brought in question, so 
that a judicial decision becomes necessary to settle the matters in controversy between 
them relative thereto, the courts have no jurisdiction; and it would be a perversion of 
the purposes for which they were instituted, and an assumption of functions that do not 
belong to them, to undertake to settle abstract questions of law, in whatever shape such 
questions may be presented. . . . Indeed, it is well settled, that courts will not take 
cognizance of fictitious suits, instituted merely to obtain judicial opinions upon points of 
law. ... As we are distinctly informed by both parties that this is a fictitious suit, 
without enquiring into the grounds upon whch the judgment was rendered, as it was for 
the defendant and only for costs, the judgment below will be affirmed at the plaintiff's costs 
in this court. (Mr. Justice Smith in Brewington v. Lowe, i Indiana, 79, 80-81, decided in 
-f8.) 

No consent of counsel can give jurisdiction. Appellate jurisdiction depends on the 
Constitution and the acts of Congress. When these do not confer it, courts of the United 
States cannot exercise it. 

We cannot take cognizance of a case not brought before us in conformity with the law. 

The case at bar, therefore, must be dismissed. (Chief Justice Chase in The Lucy, 
8 Wallace, 307, 309-310, decided in 1868.) 

Since men are naturally equal, and their rights and obligations are the same, as equally 
proceeding from nature, nations composed of men considered as so many free persons, 
living together in the state of nature, are naturally equal, and receive from nature the 
same obligations and rights. ... A dwarf is as much a man as a giant; a small republic is 
as much a sovereign state as the most powerful kingdom. (M. de Vattel, The Law of Na- 
tions; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nation^ 
and Sovereigns, 1758. Translated from the French, Vol. I, 1760, p. 6.) 

One cardinal rule, underlying all the relations of the States to each other, is that of 
equality of right. Each State stands on the same level with all the rest. It can impose its 
own legislation on no one of the others, and is bound to yield its own views to none Yet, 
whenever, as in the case of Missouri v. Illinois, 180 U S. 208, the action of one State 
reaches through the agency of natural laws into the territory of another State, the question 
of the extent and the limitations of the rights of the two States becomes a matter of 
justiciable dispute between them, and this court is called upon to settle that dispute in 
such a way as will recognize the equal rights of both and at the same time establish justice 
between them. In other words, through these successive disputes and decisions this court 
is practically building up what may not improperly be called interstate common law. (Mr. 
Justice Brewer in Kansas v. Colorado, 206 United States, 46, 97-8, decided in 1907.) 



CHAPTER XIX 

EXTENT AND EXERCISE OF JUDICIAL POWER 

The . After having considered at some length the nature of judicial power, 

of Extent and the powers of the Supreme Court under the Constitution, we are pre- 

pared to take up the question of the extent of judicial power and the man- 
ner in which it is to be exercised. The first part of this question need not 
long detain us, for the Constitution itself has determined the extent of the 
judicial power of the United States, which can only be enlarged, lessened, 
or modified by an amendment to the Constitution of the United States. In 
the second section of Article II it is said: 

The judicial Power shall extend to all Cases, in Law and Equity, aris- 
ing under this Constitution, the Laws of the United States, and Treaties 
made, or which shall be made, under their Authority; — to all Cases affect- 
ing Ambassadors, other public Ministers and Consuls ; — to all Cases of 
admiralty and maritime Jurisdiction ; — to Controversies to which the United 
States shall be a Party; — to Controversies between two or more States; — 
between a State and Citizens of another State ; — between Citizens of differ- 
ent States ; — between Citizens of the same State claiming Lands under 
Grants of different States, and between a State, or the Citizens thereof, 
and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have 
original Jurisdiction, In all the other Cases before mentioned, the supreme 
Court shall have appellate Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations as the Congress shall make. 

It will be observed that, in the first of these two paragraphs, all of the 
cases are enumerated to which the judicial power of the United States shall 
extend, that in the second paragraph the distinction is drawn between original 
and appellate jurisdiction of the Supreme Court, leaving the Congress free 
to vest in the inferior courts which it may establish the other phases of the 
judicial power; but with the significant proviso that, in all the cases to 
which the judicial power of the United States extends, with the necessary 
exception of cases of original jurisdiction, the Supreme Court " shall have 
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make." 

It is further to be observed that appellate jurisdiction is not confined to 
cases originating in the inferior courts " as Congress may from time to time 



EXTENT AND EXERCISE OF JUDICIAL POWER 399 

ordain and establish," but that it extends to all cases specified in the grant 
of power, whether they be begun in a State or Federal court; and that, first 
and foremost among such cases, are those in law and equity " arising under 
this Constitution, the Laws of the United States, and Treaties made, or 
which shall be made, under their Authority." The Government of the Union 
is a government of enumerated powers, and therefore of limited jurisdic- 
tion; but within the extent of those powers it is supreme, and the propriety 
or impropriety of its action is to be determined, in the last resort, by the 
Supreme Court of the States, whose agent it is, not by the States them- 
selves. ^ 

The judicial power of the United States is thus, in its entirety, vested 
in a Federal court, whether it be supreme or inferior. It was proposed and 
urged in the Federal Convention to vest the courts of the individual States 
with jurisdiction and to allow an appeal from the judgments of the State 
courts to the Supreme Court of the United States, in order to secure uni- 
formity of decision by the use of existing agencies. But the framers of 
the Constitution decided, wisely, as experience shows, in favor of a judi- 
cial agency of the United States as a whole, in preference to the use 
of a court of any particular State as the common agency of the 
States. 

By the first section of the third article of the Constitution, " The judicial 
Power of the United States, shall be vested in one Supreme Court, and in 
such inferior Courts " as may be established from time to time by the Con- 
gress. In the second section of the same Article this Supreme Court is 
invested with original jurisdiction " in all cases aflfecting Ambassadors, 
other public Ministers and Consuls, and those in which a State shall be a 
party." These were matters of supreme importance, and therefor^ con- 
fided to the Supreme Court if, as will be seen, the beneficiaries chose to 
consider its jurisdiction exclusive and availed themselves of the Supreme 
instead of an inferior tribunal. This does not mean that the other cases 
to which the judicial power was extended were not important, but that, in 
the opinion of the framers of the Constitution, they might arise and be 
decided in inferior tribunals of the State or of the United States, subject 
to appeal to the Supreme Court in order to correct error and to ensure uni- 
formity of decision. As we are dealing with technical matters, it is well 
to be technical, and to define the sense in which these terms are used and 
understood in order to make for comprehension and clearness, even if the 
terms are so familiar that they seem to carry their own meaning with them. 

In rendering the opinion of the court in the case of White County Com- 
missioners V. Gwin (136 Indiana Reports, 562, 577), decided in 1893, Mr. 
Justice McCabe said, on behalf of his brethren : 



Court 
Defined 



400 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



In modern times, and under our form of government, the judicial powe 
is exercised by means of courts. A court is an instrumentality of govern- 
ment. It is a creation of the law, and in some respects it is an imaginary 
thing, that exists only in legal contemplation, very similar to a corporation. 
A time when, a place where, and the persons by whom judicial functions 
are to be exercised, are essential to complete the idea of a court. It is in 
its organized aspect, with all these constituent elements of time, place, and 
officers, that completes the idea of a court in the general legal acceptation 
of the term. 






The word 
" Supreme ' 



Finality 



Jurisdiction 



This is the language of a State court, but the idea pervades the United 
States as well as the States, and to show its universality the decision of a 
State has been chosen in preference to that of a Federal court. 

For a like reason, the definition of a supreme court is taken from the 
opinion of Mr. Justice Dent in the case of Koonce v. Doolittle (48 W. Va. 
Rep., 592, 594), decided in 1900, who says: 

The word " Supreme " meaning highest in the sense of final or last 
resort. Here all litigation must end, and when this Court has once finally 
determined a question it has no power to reopen it. 

It will be noted that two elements are present and must coexist — finality 
as regards the litigant and finality as regards the court. That is to say, it 
is the last court to which the case can be carried, and, when that court has 
finally decided the case, it has exhausted the judicial power with which it 
is vested, and, because thereof, it has no power to reopen it. 

But something more is needed to complete the idea of a court, whether 
it be a supreme or inferior tribunal. That idea is contained in the term 
" jurisdiction," which, like the other two, has been admirably defined by a 
State judge in the case of Munday v. Vml (34 N. J. Law Rep., 418, 422), 
decided in 1871, in which Mr, Chief Justice Beasley, speaking for his 
brethren, said: 

Jurisdiction may be defined to be the right to adjudicate concerning the 
subject matter in the given case. To constitute this there are three essen- 
tials : First. The court must have cognizance of the class of cases to which 
the one to be adjudged belongs. Second. The proper parties must be 
present. And, Third. The point decided must be, in substance and effect, 
within the sphere, and that its action is void with respect to persons who 
are strangers to its proceedings, are propositions established by a multitude 
of authorities. 

A matter of fundamental importance in this connection is that a court 
of limited jurisdiction, as are the Federal courts, Supreme as well as infe- 
rior, must, before it entertains a case, decide for itself whether it possesses 



EXTENT AND EXERCISE OF JUDICIAL POWER 401 

jurisdiction, and whether it can lawfully assume and finally decide the case Determination 
presented to it. In this regard the federal differ from courts of general 
jurisdictions, in which, it is to be presumed, unless the contrary be shown, 
that jurisdiction exists, with its necessary consequences. In the opening 
sentence of his opinion in Cherokee Nation v. Georgia (5 Peters, 1, 31), 
decided in 1831, Mr. Justice Baldwin said that he had confined his exam- 
ination of the case to the point of jurisdiction, " as jurisdiction is the first 
question which must confront us in every case." And, delivering the opinion 
of the court in the great and leading case of Rhode Island v. Massachusetts 
(12 Peters, 657, 718), decided seven years later, he had occasion to consider 
the matter of jurisdiction in detail, inasmuch as Massachusetts objected to 
the jurisdiction of the Supreme Court in the bill against it filed by Rhode 
Island and to make clear the distinction, so important in federal courts, be- 
tween tribunals of general and limited powers. On the first phase of the 
subject he said: 

However late this objection has been made, or may be made in any 
cause, in an inferior or appellate court of the United States, it must be 
considered and decided, before any court can move one further step in the 
cause; as any movement is necessarily the exercise of jurisdiction. Juris- 
diction is the power to hear and determine the subject matter in contro- 
versy between parties to a suit, to adjudicate or exercise any judicial power 
over them ; the question is, whether on the case before a court, their action 
is judicial or extra-judicial ; with or without the authority of law, to render 
a judgment or decree upon the rights of the litigant parties. If the law 
confers the power to render a judgment or decree, then the court has juris- 
diction; what shall be adjudged or decreed between the parties, and with 
which is the right of the case, is judicial action, by hearing and determin- 
ing it. 

On the second branch of the question, the learned Justice observed : 

A motion to dismiss a cause pending in the courts of the United States, 
is not analagous to a plea to the jurisdiction of a court of common law or 
equity in England; there the superior courts have a general jurisdiction 
over all persons within the realm, and all causes of action between them. 
It depends on the subject matter, whether the jurisdiction shall be exer- 
cised by a court of law or equity ; but that court, to which it appropriately 
belongs, can act judicially upon the party and the subject of the suit; unless 
it shall be made apparent to the court that the judicial determination of 
the case has been withdrawn from the court of general jurisdiction. . . . 

As a denial of jurisdiction over the subject matter of a suit between 
parties within the realm, over which and whom the court has power to act, 
cannot be successful in an English court of general jurisdiction ; a motion 
like the present could not be sustained consistently with the principles of 
its constitution. But as this Court is one of limited and special original 
jurisdiction, its action must be confined to the particular cases, controver- 
sies, and parties over which the constitution and laws have authorized it 



402 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to act; any proceeding without the limits prescribed, is coram non judice, 
and its action a nulHty. . . . And whether the want or excess of power 
is objected by a party, or is apparent to the Court, it must surcease its 
action, or proceed extra-judicially. 

Before we can proceed in this cause we must, therefore, inquire whether 
we can hear and determine the matters in controversy between the parties, 
who are two states of this Union, sovereign within their respective! 
boundaries, save that portion of power which they have granted to the! 
federal government, and foreign to each other for all but federal purposes.* 

It will not have escaped attention that, after defining the original juris- 
diction of the Supreme Court and limiting it to ambassadors, public min- 
isters, consuls, and cases to which a State was a party, the Constitution 
declared that " the Supreme Court shall have appellate jurisdiction, both as 
to law and fact, with such exceptions and under such regulations as the 
Congress shall make." It is evident that the intervention of Congress was 
necessary, inasmuch as the appellate jurisdiction to be exercised by the 
courts was not to be defined by them but exercised according to a rule which 
the Congress should make. Until Congress had acted, the Supreme Court 
could exercise the original jurisdiction expressly conferred upon it by the 
Constitution, but could not sit as an appellate tribunal until inferior tri- 
bunals had been established, from whose judgments an appeal might be 
taken, or until the manner of appeal from State courts should have been 
determined. 

The first Congress accordingly proceeded to execute this power with 
which it was vested, pursuant to the authorization contained in Article I, 
Section 8, clause 18, " to make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and all other Powers 
vested by this Constitution in the Government of the United States, or in 
any Department or Officer thereof." T[he result of its labors, in so far as 
the courts are concerned, is embraced in the act to establish the judicial 
courts of the United States, approved September 24, 1789, providing, among 
other things, that the Supreme Court should consist of a Chief Justice and 
five Associate Justices; that the United States, for judicial purposes, should 
be divided into thirteen districts, with a district court in each, and three 
circuits for these districts; that the district and circuit courts should have 
original jurisdiction in some cases and concurrent jurisdiction in others with 
the courts of the States; that the Supreme Court should exercise the 
original jurisdiction in the cases mentioned in the Constitution. The act 
also defined and regulated appeals from the Federal and State courts to the 
Supreme Court of the Union and of the States. This remarkable statute 
was drafted by a committee of the Senate consisting of eight members, of 

' 12 Peters, 718-20. 



EXTENT AND EXERCISE OF JUDICIAL POWER 403 

whom five, — including its chairman, Oliver Ellsworth, later to be Chief 
Justice, — had been members of the Federal Convention. Section 13 of the 
act, for which Mr. Ellsworth is deemed to have been chiefly responsible, 
provided : 

That the Supreme Court shall have exclusive jurisdiction of all contro- 
versies of a civil nature, where a state is a party, except between a state 
and its citizens ; and except also between a state and citizens of other states, 
or aliens, in which latter case it shall have original but not exclusive juris- 
diction. And shall have exclusively all such jurisdiction of suits or pro- 
ceedings against ambassadors, or other public ministers, or their domestics, 
or domestic servants, as a court of law can have or exercise consistently 
with the law of nations ; and original, but not exclusive jurisdiction of all 
suits brought by ambassadors, or other public ministers, or in which a 
consul, or vice consul, shall be a party. . . . The Supreme Court shall 
also have appellate jurisdiction from the circuit courts and courts of the 
several states, in the cases herein after specially provided for; and shall 
have power to issue writs of prohibition to the district courts, when pro- 
ceeding as courts of admiralty and maritime jurisdiction, and writs of 
mandamus, in cases warranted by the principles and usages of law, to any 
courts appointed, or persons holding office, under the authority of the 
United States.^ 

Passing over the method of appeal from the district to the circuit, and from 
the circuit courts to the Supreme Court, Section 25 of the act deals with 
appeals from the courts of the several States, enacting: 

That a final judgment or decree in any suit, in the highest court of law 
or equity of a State in which a decision in the suit could be had, where is 
drawn in question the validity of a treaty or statute of, or an authority 
exercised under the United States, and the decision is against their validity ; 
or where is drawn in question the validity of a statute of, or an authority 
exercised under any State, on the ground of their being repugnant to the 
constitution, treaties or laws of the United States, and the decision is in 
favour of such their validity, or where is drawn in question the construc- 
tion of any clause of the constitution, or of a treaty, or statute of, or com- 
mission held under the United States, and the decision is against the title, 
right, privilege or exemption specially set up or claimed by either party, 
under such clause of the said Constitution, treaty, statute or commission, 
may be re-examined and reversed or affirmed in the Supreme Court of 
the United States upon a writ of error, the citation being signed by the 
chief justice, or judge or chancellor of the court rendering or passing the 
judgment or decree complained of, or by a justice of the Supreme Court 
of the United States, in the same manner and under the same regulations, 
and the writ shall have the same effect, as if the judgment or decree com- 
plained of had been rendered or passed in a circuit court, and the proceed- 
ing upon the reversal shall also be the same, except that the Supreme 
Court, instead of remanding the cause for a final decision as before pro- 
vided, may at their discretion, if the cause shall have been once remanded 
before, proceed to a final decision of the same, and award execution. But 

' 1 Statutes at Large, 80-1. 



404 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

no Other error shall be assigned or regarded as a ground of reversal in 
any such case as aforesaid, than such as appears on the face of the record, 
and immediately respects the before mentioned questions of validity or 
construction of the said constitution, treaties, statutes, commissions, or 
authorities in dispute.^ 

Without dwelling at this time upon the provisions of these sections of 
the judiciary act, as it is called, it w^ill be observed that, as far as the judi- 
cial power of the United States is concerned, a decision of a State court is 
not subject to reexamination in the Supreme Court of the United States 
unless the judgment or decree is contrary to the Constitution, treaty or 
law of the United States; but it should also be observed that this section 
enabled the State court to decide the question involved in favor of the Con- 
stitution, treaty or law of the United States, although a Federal court might 
be of a different opinion if the case were presented to it. To prevent this, 
and to enable the Federal courts to pass upon a question involving the Con- 
stitution, treaties or laws of the United States, whether the decision of the 
State court was in favor or against the Constitution, treaty or law of the 
United States, it was enacted by the Congress, approved December 23, 
1914, that: 

" It shall be competent for the Supreme Court to require, by certiorari 
or otherwise, any such case to be certified to the Supreme Court for its 
review and determination, with the same power and authority in the case 
as if it had been carried by an appeal or writ of error to the Supreme 
Court, although the decision in such case may have been in favor of the 
validity of the treaty or statute or authority exercised under the United 
States or may have been against the validity of the State statute or 
authority claimed to be repugnant to the Constitution, treaties, or laws of 
the United States, or in favor of the title, right, privilege, or immunity 
claimed under the Constitution, treaty, statute, commission, or authority of 
the United States." ^ 

As in the nature of judicial power, so in the matter of its extent, the 
decisions of the Supreme Court of the United States are the best, and in 
this instance the ultimate, authority to which to resort; and because of this, 
several leading decisions of this tribunal will be considered in turn and 
somewhat at length. 

In Martin v. Hunter (1 Wheaton, 304), decided in 1816, the Supreme 
Court had occasion to consider the nature and extent of the appellate power 
of the United States in its relation to the " final judgment or decree in any 
suit in the highest court of law or equity of a state." In this instance the 

* 1 Statutes at Large, 85-7. 
'38 Statutes at Large, 790. 



EXTENT AND EXERCISE OF JUDICIAL POWER 405 

Court of Appeals of Virginia, which, on a mandate from the Supreme 
Court of the United States, rendered its judgment in the following terms: 

The court is unanimously of opinion that the appellate power of the 
supreme court of the United States does not extend to this court under a 
sound construction of the constitution of the United States; that so much 
of the 25th section of the act of congress, to establish the judicial courts 
of the United States, as extends the appellate jurisdiction of the supreme 
court to this court, is not in pursuance of the constitution of the United 
States. That the writ of error in this cause was improvidently allowed 
under the authority of that act ; that the proceedings thereon in the supreme 
court were coram non judice, in relation to this court, and that obedience 
to its mandate be declined by the court. ^ 

The question, therefore, presented by this case, was, stripped of techni- 
calities, whether, under the Constitution, the Supreme Court could properly 
subject the decision of the highest State court to a re-examination and, in 
an appropriate case, reverse that judgment or decree. In other words, 
whether the Supreme Court of the United States or the court of final resort 
of one of the States was to interpret the Constitution of the United States; 
or, narrowing the issue, whether the nature and extent of the judicial power "Nature and 
of the United States were to be determined by the court of all the States Determined 
or by the court of any one of them. As was stated by Mr. Justice Baldwin, 
in the leading case of Rhode Island v. Massachusetts (12 Peters, 657, 722), 
decided in 1838, " the power of congress to make this provision for carry- 
ing into execution the judicial power . . ., taken in connection with the 
constitution, presents the great question in this cause, which is one of con- 
struction appropriate to judicial power, and exclusively of judicial cog- 
nizance, till the legislative power acts again upon it." 

In the case of Martin v. Hunter, under consideration, Mr. Justice Story, 
recently appointed to the bench, delivered the opinion of the court, which 
has stood the test of criticism and re-examination. After explaining the 
nature of the more perfect Union of the States and of the two sovereignties 
created by the Constitution, and having quoted and analyzed the section of 
the Constitution dealing with judicial power, he continues, saying: 

The next consideration is as to the courts in which the judicial power 
shall be vested. It is manifest that a supreme court must be established; 
but whether it be equally obligatory to establish inferior courts, is a ques- 
tion of some difficulty. If congress may lawfully omit to establish inferior 
courts, it might follow, that in some of the enumerated cases the judicial 
power could nowhere exist. The supreme^ court can have original juris- 
diction in two classes of cases only, viz. in cases affecting ambassadors, 
other public ministers and consuls, and in cases in which a state is a party. 
Congress cannot vest any portion of the judicial power of the United 

• 1 Wheaton, 305-6. 



406 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

States, except in courts ordained and established by itself ; and if in any 
of the cases enumerated in the constitution, the state courts did not then 
possess jurisdiction, the appellate jurisdiction of the supreme court (admit- 
ting that it could act on state courts) could not reach those cases, and con- 
sequently, the injunction of the constitution, that the judicial power " shall 
be vested," would be disobeyed. It would seem, therefore, to follow, that 
congress are bound to create some inferior courts, in which to vest all that 
jurisdiction which, under the constitution, is exclusively vested in the United 
States, and of which the supreme court cannot take original cognisance. 
They might establish one or more inferior courts ; they might parcel out 
the jurisdiction among such courts, from time to time, at their own 
pleasure. But the whole judicial power of the United States should be, 
at all times, vested either in an original or appellate form, in some courts 
created under its authority.'- 

After reenforcing the viev^ which he had just expressed by an attentive 
examination of the second section of the third article, he thus states a fur- 
ther question, which naturally presented itself: 

It being, then, established that the language of this clause is imperative, 
the next question is as the cases to which it shall apply. The answer is 
found in the constitution itself. The judicial power shall extend to all the 
cases enumerated in the constitution. As the mode is not limited, it may 
extend to all such cases, in any form, in which judicial power may be 
exercised. It may, therefore, extend to them in the shape of original or 
appellate jurisdiction, or both ; for there is nothing in the nature of the 
cases which binds to the exercise of the one in preference to the other.^ 

The learned justice next asks the question, "In what cases (if any) is this 
judicial power exclusive, or exclusive at the election of congress " and, in 
regard to the States, he says : 

At all events, whether the one construction or the other prevail, it is 
manifest that the judicial power of the United States is unavoidably, in 
some cases, exclusive of all state authority, and in all others, may be made 
so at the election of congress. No part of the criminal jurisdiction of the 
United States can, consistently with the constitution, be delegated to state 
tribunals. The admiralty and maritime jurisdiction is of the same exclu- 
sive cognisance ; and it can only be in those cases where, previous to the 
constitution, state tribunals possessed jurisdiction independent of national 
authority, that they can now constitutionally exercise a concurrent jurisdic- 
tion. Congress, throughout the judicial act, and particularly in the 9th, 11th, 
and 13th sections, have legislated upon the supposition that in all the cases 
to which the judicial powers of the United States extended, they might 
rightfully vest exclusive jurisdiction in their own courts.^ 

After stating that the original jurisdiction of the Supreme Court is 

' 1 Wheaton, 330-1. 
' Ibid., 333. 
• Ibid., 336-7. 



EXTENT ANP EXERCISE OF JtJDICIAL POWER 407 

limited, but that there are no terms of limitation upon the jurisdiction which 
it may assume upon appeal, in so far as the Constitution, the treaties and 
the laws of the United States are concerned, Mr. Justice Story comes to the 
specific question before him for decision. Thus: 

As, then, by the terms of the constitution, the appellate jurisdiction is 
not limited as to the supreme court, and as to this court it may be exercised 
in all other cases than those of which it has original cognisance, what is 
there to restrain its exercise over state tribunals, in the enumerated cases ? ^ 

And to this question he gives the following conclusive answer: 

The appellate power is not limited by the terms of the third article to 
any particular courts. The words are, "the judicial power (which includes 
appellate power) shall extend to all cases," &c., and " in all other cases 
before mentioned the supreme court shall have appellate jurisdiction." It 
is the case, then, and not the court, that gives the jurisdiction. If the judi- 
cial power extends to the case, it will be in vain to search in the letter of 
the constitution for any qualification as to the tribunal where it depends.^ 

Examining this phase of the case more closely, he continued : 

On the other hand, if, as has been contended, a discretion be vested in 
congress to establish, or not to establish, inferior courts at their own 
pleasure, and congress should not establish such courts, the appellate juris- 
diction of the supreme court would have nothing to act upon, unless it 
could act upon cases pending in the state courts. Under such circumstances 
it must be held that the appellate power would extend to state courts ; for 
the constitution is peremptory that it shall extend to certain enumerated 
cases, which cases could exist in no other courts.* 

There was, however, an argument stronger than that based upon the 
reason of the thing, which Mr. Justice Story thus states in the very next 
paragraph of his opinion: 

But it is plain that the framers of the constitution did contemplate that 
cases within the judicial cognizance of the United States not only might 
but would arise in the state courts, in the exercise of their ordinary juris- 
diction. With this view the sixth article declares, that " this constitution, 
and the laws of the United States which shall be made in pursuance thereof, 
and all treaties made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land, and the judges in 
every state shall be bound thereby, any thing in the constitution or laws of 
any state to the contrary notwithstanding." It is obvious that this obliga- 
tion is imperative upon the state judges in their official, and not merely in 
their private, capacities. From the very nature, of their judicial duties they 
would be called upon to pronounce the law applicable to the case in judg- 

' Ibid., 338. 

' Ibid. 

' Ibid., 339-40. 



408 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

ment. They were not to decide merely according to the laws or constitu- 
tion of the state, but according to the constitution, laws and treaties of the 
United States — " the supreme law of the land." 

With this statement of the language of the judicial section and of the 
obligation imposed by the sixth article of the Constitution, Mr. Justice 
Story might have concluded this portion of his opinion, but he was unwill- 
ing to overlook two further reasons, which then, and now, after the experi- 
ence of a century, are of importance. 

As to the first reason [to quote Mr. Justice Story's language] — admitting 
that the judges of the state courts are, and always will be, of as much 
learning, integrity, and wisdom, as those of the courts of the United States, 
(which we very cheerfully admit) it does not aid the argument. It is 
manifest that the constitution has proceeded upon a theory of its own, and 
given or withheld powers according to the judgment of the American people, 
by whom it was adopted. We can only construe its powers, and cannot 
inquire into the policy or principles which induced the grant of them. The 
constitution has presumed (whether rightly or wrongly we do not inquire), 
that state attachments, state prejudices, state jealousies, and state interests, 
might sometimes obstruct, or control, or be supposed to obstruct, or con- 
trol, the regular administration of justice. Hence, in controversies between 
states ; between citizens of different states ; between citizens claiming grants 
under different states ; between a state and its citizens, or foreigners, and 
between citizens and foreigners, it enables the parties, under the authority 
of congress, to have the controversies heard, tried, and determined before 
the national tribunals. No other reason than that which has been stated 
can be assigned, why some, at least, of those cases should not have been 
left to the cognizance of the state courts. In respect to the other enumerated 
cases — the cases arising under the constitution, laws, and treaties of the 
United States, cases affecting ambassadors and other public ministers, and 
cases of admiralty and maritime jurisdiction — reasons of a higher and 
more extensive nature, touching the safety, peace, and sovereignty of the 
nation, might well justify a grant of exclusive jurisdiction.^ 

So much for the first reason; as to the second, Mr. Justice Story said: 

A motive of another kind, perfectly compatible with the most sincere 
respect for state tribunals, might induce the grant of appellate power over 
their decisions. That motive is the importance, and even necessity of 
uniformity of decisions throughout the whole United States, upon all sub- 
jects within the purview of the constitution. Judges of equal learning and 
integrity, in different states, might differently interpret a statute, or a treaty 
of the United States, or even the constitution itself: If there were no revis- 
ing authority to control these jarring and discordant judgments, and har- 
monize them into uniformity, the laws, the treaties, and the constitution of 
the United States would be different in different states, and might, per- 
haps, never have precisely the same construction, obligation, or efficacy, in 
any two states. The public mischiefs that would attend such a state of 

M Wheaton, 346-7. 



EXTENT AND EXERCISE OF JUDICIAL POWER 409 

things would be truly deplorable ; and it cannot be believed that they could 
have escaped the enlightened convention which formed the constitution. 
What, indeed, might then have been only prophecy, has now become fact; 
and the appellate jurisdiction must continue to be the only adequate remedy 
for such evils. ^ 

In Cohens v. Virginia (6 Wheaton, 264), decided in 1821, the same 
general question arose in a different way and was argued differently, but 
decided in accordance with the principle of Martin v. Hunter, although the 
ratio decidendi of the Cohens case differed from that of Martin v. Hunter 
in that Mr. Chief Justice Marshall instead of Mr. Justice Story delivered 
the opinion. 

There was a statute of the State of Virginia forbidding the sale of lot- 
tery tickets within the State. There was an act of Congress of May 4, 
1812, permitting the drawing of lotteries within the District of Columbia; 
and the question was, whether this act of Congress could be pleaded as a 
defense to the law of Virginia forbidding the sale of lottery tickets within 
the State. From the judgment of the highest court of the State having 
jurisdiction of the cause of action, the case was removed, by writ of error, 
to the Supreme Court of the United States, where counsel for defendant 
moved to dismiss the writ for want of jurisdiction, upon the ground that 
a State was a defendant, that a writ of error does not lie from the Supreme 
Court of the United States to a State court, and that the Supreme Court 
had no jurisdiction of the case because the judgment violated neither the 
Constitution nor any law of the United States. 

On the important question as stated, Mr. Chief Justice Marshall said, 
in delivering the unanimous opinion of the court : 

The questions presented to the Court by the first two points made at 
the bar are of great magnitude, and may be truly said vitally to affect the 
Union. They exclude the inquiry whether the constitution and laws of the 
United States have been violated by the judgment which the plaintiffs in 
error seek to review ; and maintain that, admitting such violation, it is not 
in the power of the government to apply a corrective. They maintain that 
the nation does not possess a department capable of restraining peaceably, 
and by authority of law, any attempts which may be made, by any part, 
against the legitimate powers of the whole; and that the government is 
reduced to the alternative of submitting to such attempts, or of resisting 
them by force. They maintain that the constitution of the United States 
has provided no tribunal for the final construction of itself, or of the laws 
or treaties of the nation ; but that this power may be exercised in the last 
resort by the Courts of every State in the Union. That the constitution, 
laws, and treaties, may receive as many constructions as there are States; 
and that this is not a mischief, or, if a mischief, is irremediable.^ 

* Ibid., 347-8. 

* 6 Wheaton, 376-7. 



410 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

After this statement, the Chief Justice proceeded to discuss the question 
in which the case before him was to be distinguished in form, though not 
in substance, from that of Martin v. Hunter, and the conclusion which he 
reached on this first point is deeply imbedded in the jurisprudence of the 
United States, and is hardly less familiar than the language of the Consti- 
tution, which it interprets. 

After saying that " jurisdiction is given to the Courts of the Union in 
two classes of cases," he thus enumerates them: 

In the first, their jurisdiction depends on the character of the cause, 
whoever may be the parties. This class comprehends " all cases in law 
and equity arising under this constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority." This 
clause extends the jurisdiction of the Court to all the cases described, with- 
out making in its terms any exception whatever, and without any regard 
to the condition of the party. If there be any exception, it is to be implied 
against the express words of the article. 

In the second class, the jurisdiction depends entirely on the character 
of the parties. In this are comprehended " controversies between two or 
Liability more States, between a State and citizens of another State," and " between 

of States a State and foreign States, citizens or subjects." If these be the parties, 

it is entirely unimportant what may be the subject of controversy. Be it 
what it may, these parties have a constitutional right to come into the 
Courts of the Union. ^ 

To break the force of this statement, counsel for defendant in error con- 
tended " that a sovereign, independent State is not suable except by its own 
consent." Upon which statement, the Chief Justice made the following 
comment : 

This general proposition will not be controverted. But its consent is 
not requisite in each particular case. It may be given in a general law. And 
if a state has surrendered any portion of its sovereignty, the question 
whether a liability to suit be a part of this portion, depends on the instru- 
ment by which the surrender is made. If, upon a just construction of that 
instrument, it shall appear that the State has submitted to be sued, then it 
has parted with the sovereign right of judging in every case on the justice 
of its own pretentions, and has entrusted that power to a tribunal in whose 
impartiality it confides.^ 

After quoting the express provision of the Constitution, extending the 
judicial power to controversies between two or more States, between citizens 
of a State and another State, and between citizens of a foreign State, 
citizens or subjects, the Chief Justice concludes that " the mere circumstance 
that a State is a party gives jurisdiction to the court," and that " the Con- 

' 6 Wheaton, 378. 
»/6jU, 380. 



EXTENT AND EXERCISE OF JUDICIAL POWER 411 

stitution gave to every person having a claim upon a State a right to sub- 
mit his case to the Court of the nation." To show the importance of having 
a case, even akhough a State be a party, passed upon by the Supreme Court 
when the Constitution, treaties or laws of the United States be drawn in 
question, and the decision opposed to the supreme law of the land, the Chief 
Justice thus reenforces the reasons already advanced by Mr. Justice Story, 
saying : 

What power of the government could be executed by its own means, 
in any State disposed to resist its execution by a course of legislation? The 
laws must be executed by individuals acting within the several States. If 
these individuals may be exposed to penalties, and if the Courts of the 
Union cannot correct the judgments by which these penalties may be 
enforced, the course of the government may be, at any time, arrested by 
the will of one of its members. Each member will possess a veto on the 
will of the whole.^ 

And again: 

Different States may entertain different opinions on the true construc- 
tion of the constitutional powers of Congress. We know, that at one time, 
the assumption of the debts contracted by the several States, during the 
war of our revolution, was deemed unconstitutional by some of them. We 
know, too, that at other times, certain taxes, imposed by Congress, have 
been pronounced unconstitutional. Other laws have been questioned par- 
tially, while they were supported by the great majority of the American 
people. We have no assurance that we shall be less divided than we have 
been. States may legislate in conformity to their opinions, and may enforce 
those opinions by penalties. It would be hazarding too much to assert, that 
the judicatures of the States will be exempt from the prejudices by which 
the legislatures and people are influenced, and will constitute perfectly 
impartial tribunals In many States the judges are dependent for office and 
for salary on the will of the legislature. The constitution of the United 
States furnishes no security against the universal adoption of this prin- 
ciple. When we observe the importance which that constitution attaches 
to the independence of judges, we are the less inclined to suppose that it 
can have intended to leave these constitutional questions to tribunals where 
this independence may not exist, in all cases where a State shall prosecute 
an individual who claims the protection of an act of Congress.^ 

Taking up another phase of the question involved in the contention, the 
Chief Justice said : 

It has been also urged, as an additional objection to the jurisdiction of 
the Court, that cases between a State and one of its own citizens, do not 
come within the general scope of the constitution ; and were obviously 
never intended to be made cognizable in the federal Courts. . . . 

' Ihid., 385. 
» Ibxd.. 386-7. 



412 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

This is very true, so far as the jurisdiction depends on the character of 
the parties ; and the argument would have great force if urged to prove that 
this Court could not establish the demand of a citizen upon his State, but 
is not entitled to the same force when urged to prove that this Court cannot 
inquire whether the constitution or laws of the United States protect a 
citizen from a prosecution instituted against him by a State. If jurisdic- 
tion depended entirely on the character of the parties, and was not given 
where the parties have not an original right to come into Court, that part 
of the 2d section of the 3d article, which extends the judicial power to all 
cases arising under the constitution and laws of the United States, would 
be mere surplusage. It is to give jurisdiction where the character of the 
parties would not give it, that this very important part of the clause >vas 
inserted. ... If the constitution or laws may be violated by proceedings 
instituted by a State against its own citizens, and if that violation may be 
such as essentially to affect the constitution and the laws, such as to arrest 
the progress of government in its constitutional course, why should these 
cases be excepted from that provision which expressly extends the judicial 
power of the Union to all cases arising under the constitution and laws ? ^ 

To this question, thus put, no satisfactory answer has as yet been made. 

In some respects the case of O shorn v. Bank of the United States 
(9 Wheaton, 737), decided in 1824, is to be considered as an appeal from 
the decision of the Supreme Court in the case of McCulloch v. Maryland 
How Cases (4 WheatoH, 316), decided five years earlier, holding that a State law tax- 

E ^t^ ^""^ '"S ^ branch of the bank of the United States in that State is a tax upon 

an agency of the United States and is unconstitutional, null and void. The 
decision in the McCulloch case was re-examined and affirmed. In addition, 
the court held that a suit against officers of a State, enjoining them from 
proceeding against the bank, was not a suit against the State in the sense 
of the 11th Amendment, unless the State itself were a party to the record. 
While, however, the Osborn case is an authority for these views, for pres- 
ent purposes it is cited to show when and how a case arises in law and equity 
under the Constitution, treaties and laws of the United States. 

Counsel for the defendants had insisted that it was not such a case; 
counsel for the plaintifif that it was; and, meeting the issue as presented, the 
court examined the question and rejected the defendant's thesis. Speaking 
for the court, Mr. Chief Justice Marshall said: 

The appellants contend, that it does not, because several questions may 
arise in it, which depend on the general principles of the law, not on any 
act of Congress. 

If this were sufficient to withdraw a case from the jurisdiction of the 
federal Courts, almost every case, although involving the construction of a 
law, would be withdrawn; and a clause in the constitution, relating to a 
subject of vital importance to the government, and expressed in the most 
comprehensive terms, would be construed to mean almost nothing.^ 

• 6 Wheaton, 390-2. 
" 9 Wheaton, 819-20. 



EXTENT AND EXERCISE OF JUDICIAL POWER 413 

The Chief Justice thereupon asks if jurisdiction is excluded because the 
case involves questions depending on general principles, and holds that it 
is not, saying and declaring the law on this point : 

A cause may depend on several questions of fact and law. Some of 
these may depend on the construction of a law of the United States ; others 
on principles unconnected with that law. If it be a sufficient foundation 
for jurisdiction, that the title or right set up by the party, may be defeated 
by one construction of the constitution or law of the United States, and 
sustained by the opposite construction, provided the facts necessary to sup- 
port the action be made out, then all the other questions must be decided 
as incidental to this, which gives that jurisdiction. Those other questions 
cannot arrest the proceedings. Under this construction, the judicial power 
of the Union extends effectively and beneficially to that most important 
class of cases, which depend on the character of the cause. On the oppo- 
site construction, the judicial power never can be extended to a whole case, 
as expressed by the constitution, but to those parts of cases only which 
present the particular question involving the construction of the constitu- 
tion or the law. We say it never can be extended to the whole case, 
because, if the circumstance that other points are involved in it, shall 
disable Congress from authorizing the Courts of the Union to take juris- 
diction of the original cause, it equally disables Congress from authorizing 
those Courts to take jurisdiction of the whole cause, on an appeal, and 
thus will be restricted to a single question in that cause; and words obvi- 
ously intended to secure to those who claim rights under the constitution, 
laws, or treaties of the United States, a trial in the federal Courts, will be 
restricted to the insecure remedy of an appeal upon an insulated point, 
after it has received that shape which may be given to it by another tri- 
bunal, into which he is forced against his will. 

We think, then, that when a question to which the judicial power of the 
Union is extended by the constitution, forms an ingredient of the original 
cause, it is in the power of Congress to give the Circuit Courts jurisdiction 
of that cause, although other questions of fact or of law may be involved 
in it.i 

It requires no comment to show the necessity of such a decision, as other- 
wise the purpose of the Constitution would be frustrated, in that cases in 
law and equity arising under the Constitution, treaties or laws of the 
United States would not be examined by the Supreme Court, either 
originally or upon appeal, and the Government of the States would be 
unable to defend itself in many cases against the acts of the States. Such 
a construction would not extend the judicial power of the United States 
but would withdraw such power from cases in law and equity arising under 
the Constitution, laws and treaties of the United States. 

The question frequently arises whether the judicial power of the United ^^ 
States is concurrent with that of the States ; or whether it is, in its nature, ^°;^<fj^^g„t 
exclusive. Advocates of a highly centralized government insist that the °^ Exclusive? 

'Ibid., 821-3. 



414 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

judicial power of the United States is exclusive wherever it attaches, 
whereas advocates of the States insist that the States retained the right to 
the exercise of judicial power in all cases where it has not been renounced, 
or where the Government of the Union, in pursuance of the Constitution, 
has not invested the judicial power exclusively in the courts of the Union. 
The framers of the Constitution, its classic expounders, the Congress and the 
Supreme Court, seem to belong to the latter class. As far as the framers 
of the Constitution and the Congress are concerned, it is only necessary to 
point to Section 9 of the judiciary act of September 24, 1789, which rec- 
ognizes concurrent jurisdiction by declaring, among other things, that the 
district courts of the United States " shall also have cognizance, concurrent 
with the courts of the several States, or the circuit courts, as the case 
may be, of all causes where an alien sues for a tort only in violation of the 
law of nations or a treaty of the United States." ^ 

Members of the committee framing this act had been members of the 
Federal Convention. The hand that drew it was Oliver Ellsworth, mem- 
ber of the Federal Convention, member of the State Convention of Con- 
necticut for the ratification of the Constitution, first United States Senator 
from his State under the Constitution, and soon to be Chief Justice of the 
Supreme Court of the United States. Alexander Hamilton was no friend 
of the States. He wished to blot them out of existence. In the plan of 
the Constitution which he proposed to the Federal Convention they would 
have been little more than provinces, with governors appointed for life or 
during good behavior with a veto upon the laws of the State, and appointed 
by a President holding office for life or during good behavior. Yet he 
admitted freely, in The Federalist, that the States under the Constitution 
were to be considered as sovereign bodies, possessing the powers which they 
did not expressly or impliedly grant to the Government of the Union, or 
which they did not themselves renounce. In the 82d number of The Fed- 
eralist he speaks of the Government as composed of distinct sovereignties, 
and, discussing the relation of the State to the Federal judiciary, he asks: 
" Is this to be exclusive or are those courts to possess a concurrent juris- 
diction? If the latter, in what relation will they stand to the national tri- 
bunals?" These inquiries, which, he says, "we meet with in the mouths 
of men of sense," he thus answers: 

The principles established in a former paper teach us, that the states 
will retain all pre-existing authorities, which may not be exclusively dele- 
gated to the federal head; and that this exclusive delegation can only exist 
in one of three cases: where an exclusive authority is, in express terms, 
granted to the union; or where a particular authority is granted to the 

* 1 Statutes at Large, 77. 



I 



EXTENT AND EXERCISE OF JUDICIAL POWER 415 



union, and the exercise of a like authority is prohibited to the states; or, 
where an authority is granted to the union, with which a similar authority 
in the states would be utterly incompatible. Though these principles may 
not apply with the same force to the judiciary, as to the legislative power; 
yet I am inclined to think, that they are in the main, just with respect to 
the former, as well as the latter. And under this impression I shall lay it 
down as a rule, that the state courts will retain the jurisdiction they now 
have, unless it appears to be taken away in one of the enumerated modes.^ 

These are also the views of the Supreme Court, and indeed, in the case 
of ClaMin v. Houseman (93 U. S., 130), decided in 1876, Mr. Justice 
Bradley, speaking for a unanimous court, refers to this very number of The 
Federalist and appears to approve not merely the view which has been 
quoted, but Hamilton's entire conception and statement of the concurrent 
powers of the Federal and of the State courts. And the approval of the 
Supreme Court is not indirect, but express and direct, in that it thus quotes 
and approves the Hamiltonian conception: 

It was fully examined in the eighty-second number of " The Federalist," 
by Alexander Hamilton, with his usual analytical power and far-seeing 
genius ; and hardly an argument or a suggestion has been made since which 
he did not anticipate. After showing that exclusive delegation of authority 
to the Federal government can arise only in one of three ways, — either by 
express grant of exclusive authority over a particular subject; or by a 
simple grant of authority, with a subsequent prohibition thereof to the 
States; or, lastly, where an authority granted to the Union would be utterly 
incompatible with a similar authority in the States, — he says, that these 
principles may also apply to the judiciary as well as the legislative power. 
Hence, he infers that the State courts will retain the jurisdiction they then 
had, unless taken away in one of the enumerated modes. But, as their 
previous jurisdiction could not by possibility extend to cases which might 
grow out of and be peculiar to the new constitution, he considered that, ' 
as to such cases, Congress might give the Federal courts sole jurisdiction. 
" I hold," says he, " that the State courts will be divested of no part of 
their primitive jurisdiction, further than may relate to an appeal ; and I 
am even of opinion, that in every case in which they were not expressly 
excluded by the future acts of the national legislature, they will, of course, 
take cognizance of the causes to which those acts may give birth. This I 
infer from the nature of judiciary power, and from the general genius of 
the system. The judiciary power of every government looks beyond its 
own local or municipal laws, and, in civil cases, lays hold of all subjects of 
litigation between parties within its jurisdiction, though the causes of dis- 
pute are relative to the laws of the most distant part of the globe. . . . 
When, in addition to this, we consider the State governments and the 
national government, as they truly are, in the light of kindred systems, and 
as parts of ONE WHOLE, the inference seems to be conclusive, that the 
State courts would have concurrent jurisdiction in all cases arising under 
the laws of the Union, where it was not expressly prohibited." ^ 

' The Federalist. 1802 ed.. Vol. II, pp. 243-4. 
2 93 U. S. 138. 



416 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

After referring to the passage of the judiciary act, which has been quoted, 
and to the exact language of the Constitution, Mr. Justice Bradley next 
invokes the authority of the great Chief Justice himself. Thus: 

In Cohens v. Virginia, 6 Wheat. 415, Chief Justice Marshall demon- 
strates the necessity of an appellate power in the Federal judiciary to revise 
the decisions of State courts in cases arising under the Constitution and 
laws of the United States, in order that the constitutional grant of judicial 
power, extending it to all such cases, may have full eflfect. He says, " The 
propriety of mtrusting the construction of the Constitution and laws, made 
in pursuance thereof,. to the judiciary of the Union, has not, we believe, as 
yet, been drawn in question. It seems to be a corollary from this political 
axiom, that the Federal courts should either possess exclusive jurisdiction 
in such cases, or a power to revise the judgment rendered in them by the 
State tribunals. If the Federal and State courts have concurrent jurisdic- 
tion in all cases arising under the Constitution, laws, and treaties of the 
United States, and if a case of this description brought in a State court 
cannot be removed before judgment, nor revised after judgment, then the 
construction of the Constitution, laws, and treaties of the United States 
is not confided particularly to thisir judicial department, but is confided 
equally to that department and to the State courts, however they may be 
constituted.^ 

The Clafflin case was one to test the nature and extent of concurrent 
jurisdiction on the part of the State and Federal courts, inasmuch as it 
involved a question of bankruptcy, which, under the bankruptcy law of the 
United States, passed by Congress pursuant to Article I, Section 8, of the 
Constitution, invests Congress with the power "to establish . . . uniform 
Laws on the subject of Bankruptcies throughout the United States." Speak- 
ing for the court, Mr. Justice Bradley said and concluded: 

We hold that the assignee in bankruptcy, under the Bankrupt Act of 
1867, as it stood before the revision, had authority to bring a suit in the 
State courts, wherever those courts were invested with appropriate juris- 
diction, suited to the nature of the case.^ 

The last case to be considered in this connection is that of Ames v. 
Kansas (111 U. S., 449), decided in 1884, in which the court had occasion 
to consider the original and appellate jurisdiction of the United States, and 
to establish the principle that, even in those cases in which the Supreme 
Court has original jurisdiction by the Constitution, the term " original " is 
not necessarily exclusive. 

After referring to the judicial clause of the Constitution, to the judiciary 
act of 1789, passed within six months after the inauguration of the Gov- 
ernment under the Constitution, vesting suits against Ambassadors in the 

' 93 U. S., 142. 
' Ibid., 143. 



EXTENT AND EXERCISE OF JUDICIAL POWER 417 

Supreme Court as could be brought against ambassadors, " and original, 
but not exclusive, jurisdiction of all suits brought by ambassadors, or other 
public ministers, or to which a consul, or vice-consul shall be a party," Mr. 
Chief Justice Waite, speaking for a unanimous court, said: 

It thus appears that the first Congress, in which were many who had 
been leading and influential members of the convention, and who were 
familiar with the discussions that preceded the adoption of the Constitu- 
tion by the States and with the objections urged against it, did not under- 
stand that the original jurisdiction vested in the Supreme Court was neces- 
sarily exclusive. That jurisdiction included all cases affecting ambassadors, 
other public ministers and consuls, and those in which a State was a party. 
The evident purpose was to open and keep open the highest court of the 
nation for the determination, in the first instance, of suits involving a State 
or a diplomatic or commercial representative of a foreign government. So 
much was due to the rank and dignity of those for whom the provision 
was made; but to compel a State to resort to this one tribunal for the 
redress of all its grievances, or to deprive an ambassador, public minister 
or consul of the privilege of suing in any court he chose having jurisdic- 
tion of the parties and the subject matter of his action, would be, in many 
cases, to convert what was intended as a favor into a burden.^ 

The Chief Justice and his brethren were of opinion that the purpose of the 
framers of the Constitution would be subserved if the parties entitled to 
invoke the original jurisdiction of the Supreme Court could not be made 
defendants in another tribunal. Thus, the Chief Justice said: 

Acting on this construction of the Constitution, Congress took care to 
provide that no suit should be brought against an ambassador or other public 
minister except in the Supreme Court, but that he might sue in any court 
he chose that was open to him. As to consuls, the commercial represen- 
tatives of foreign governments, the jurisdiction of the Supreme Court was 
made concurrent with the District Courts, and suits of a civil nature could 
be brought against them in either tribunal. ... In this way States, 
ambassadors, and public ministers were protected from the compulsory 
process of any court other than one suited to their high positions, but were 
left free to seek redress for their own grievances in any court that had the 
requisite jurisdiction. No limits were set on their powers of choice in this 
particular. This, of course, did not prevent a State from allowing itself 
to be sued in its own courts or elsewhere in any way or to any extent it 
chose. ^ 

After an examination of the precedents, Mr. Chief Justice Waite thus con- 
cluded the portion of the opinion material to the present purpose: 

In view of the practical construction put on this provision of the Con- 
stitution by Congress at the very moment of the organization of the gov- 

' 111 U. S.. 464. 
" Ibid.. 464-5. 



418 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



ernment, and of the significant fact that from 1789 until now no court of 
the United States has ever in its actual adjudications determined to the 
contrary, we are unable to say that it is not within the power of Congress 
to grant to the inferior courts of the United States jurisdiction in cases 
where the Supreme Court has been vested by the Constitution with original 
jurisdiction. It rests with the legislative department of the government to 
say to what extent such grants shall be made, and it may safely be assumed 
that nothing will ever be done to encroach upon the high privileges of 
those for whose protection the constitutional provision was intended. At 
any rate, we are unwilling to say that the power to make the grant does 
not exist.^ 



Political V. 

Judicial 

Questions 



In the Federal Convention which adopted the Constitution, it was pro- 
posed to establish a council of revision to pass upon the acts of the State 
legislatures and upon those of the Congress, and, in appropriate cases, to 
negative the acts of each. Omitting details and the various forms which 
this proposition assumed, it is sufficient for present purposes to state that, 
in each instance, this body was to be composed in part of the national judi- 
ciary, thus investing its members with political functions. This proposi- 
tion, in various forms and at various times, was urged upon the Convention 
by the ablest members, such as Messrs. Madison, Wilson, and Ellsworth. The 
Convention, however, wiser than its wisest members, insisted upon the sepa- 
ration of judicial and political powers, and, after much debate and delibera- 
tion, rejected the proposition, for the very substantial reasons contained in 
a few of the many passages which could be quoted from Mr. Madison's 
Notes of the debates. 



1. M"". Chorum did not see the advantage of employing the Judges in this 
way. As Judges they are not to be presumed to possess any peculiar knowl- 
edge of the mere policy of public measures. 

2. M"". Gerry did not expect to see this point which had undergone full 
discussion, again revived. . . . The motion was liable to strong objec- 
tions. It was combining & mixing together the Legislative & the other 
departments. It was establishing an improper coalition between the 
Executive & Judiciary departments. It was making Statesmen of the 
Judges ; and setting them up as the guardians of the Rights of the people. 
... It was making the Expositors of the Laws, the Legislators which 
ought never to be done. 

3. M''. Strong thought with M"". Gerry that the power of making ought to 
be kept distinct from that of expounding, the laws. No maxim was better 
established. The Judges in exercising the function of expositors might be 
influenced by the part they had taken, in framing the laws. 

4. M"". L. Martin considered the association of the Judges with the Execu- 
tive as a dangerous innovation ; . . . A knowledge of Mankind, and of 
Legislative afifairs cannot be presumed to belong in a higher degree to the 
Judges than to the Legislature. And as to the Constitutionality of the 
laws, that point will come before the Judges in their proper ofBcial charac- 

Mll U. S., 469. 



EXTENT AND EXERCISE OF JUDICIAL POWER 419 

ter. In this character they have a negative on the laws. Join them with 
the Executive in the Revision and they will have a double negative. 

5. M"". Gerry had rather give the Executive an absolute negative for its 
own defence than thus to blend together the Judiciary & Executive depart- 
ments. It will bind them together in an offensive and defensive alliance 
ag^^ the Legislature, and render the latter unwilling to enter into a contest 
with them. 

6. M"". Ghorum. All agree that a check on the Legislature is necessary. 
But there are two objections ag^'. admitting the Judges to share in it which 
no observations on the other side seem to obviate. The 1='. is that the Judges 
ought to carry into the exposition of the laws no prepossessions with 
regard to them. 2^. that as the Judges will outnumber the Executive, the 
revisionary check would be thrown entirely out of the Executive hands, and 
instead of enabling him to defend himself, would enable the Judges to 
sacrifice him. 

7. M"". Rutlidge thought the Judges of all men the most unfit to be con- 
cerned in the revisionary Council. The Judges ought never to give their 
opinion on a law till it comes before them. He thought it equally unneces- 
sary. The Executive could advise with the officers of State, as of war, 
finance &c. and avail himself of their information and opinions.^ 

8. M"". Sherman. Can one man be trusted better than all the others if 
they all agree? This was neither wise nor safe. He disapproved of 
Judges meddling in politics and parties.^ 

It vi^as clearly the intention of the framers that the judiciary should not 
busy itself with politics, and repeated decisions of the Supreme Court have 
given efifect to their intention, that the judicial power does not extend to 
political questions. Controversies between States were not justiciable before 
the Constitution of the United States. They were political questions, and 
as such they were not submitted, or were not regarded as capable of sub- 
mission, to a court of justice. This fact was adverted to by Mr. Justice 
Bradley in Hans v. Louisiana (134 U. S., 1, 15), decided in 1889, who said, 
on behalf of the court: 

The truth is, that the cognizance of suits and actions unknown to the 
law, and forbidden by the law, was not contemplated by the Constitution 
when establishing the judicial power of the United States. 

Had he stopped here, questions at that time considered political would have 
remained so, but he adds: 

Some things, undoubtedly, were made justiciable which were not known 
as such at the common law; such, for example, as controversies between 
States as to boundary lines, and other questions admitting of judicial 
solution. 

'^Documentary History of the Constitution, Vol. Ill, pp. 391-9. Session of July 21st. 
' Ibid., p. 539. Session of August 15th. 



420 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

How.^^^ The distinction, therefore, is not hard and fast. Things political may 

Become"^ becomc justiciable, and therefore submitted to a court for decision; and 

Judicial ^]^g question arises, how this transformation may be brought about. For- 

tunately, we do not need to indulge in speculative or theoretical reasoning, 
for we have on this very point the authority of the Supreme Court of the 
United States, showing (i) how political power, vested originally in the 
crown, became judicial by submission to courts of justice; (2) that con- 
troversies between the colonies, settled as such by the King in Council be- 
cause they had no other common superior, became by the same process 
judicial when submitted to a court of justice; and (3), that the agreement 
- by the States of the American Union to submit their controversies to courts 
of justice made them justiciable. 

In Rhode Island v. Massachusetts (12 Peters, 657), decided in 1838, this 
whole question was examined, the distinction between judicial and political 
questions outlined and defined and the process by which questions, originally 
political, could become justiciable, and therefore judicial, stated and applied. 
In proof of the first of these contentions, Mr. Justice Baldwin, delivering 
the opinion of the court in this case, quotes an early English statute and 
Coke's Institutes, of hardly less authority. The learned Justice quotes the 
statute of 20 Edward III, Chapter I. The passages from Coke's Institutes, 
referring to and summarizing this amang other statutes, are as follows: 

First, where Bracton saith, Habet rex plures curias in quibus diversae 
actiones terminantur ; Hereby, and in effect by Britton, and this conclusion 
followeth, that the King hath committed and distributed all his whole power 
of judicature to several! Courts of Justice, and therefore the judgement must 
be idea consideratum est per Curiam. And herewith do agree divers Acts of 
parliament and Book cases, some whereof, for illustration, we will briefly 
remember ; and leave the judicious reader to the rest 

8 H. 4. the King hath committed all his power judiciall, some in one 
Court, and some in another, so as if any would render himselfe to the judge- 
ment of a King in such case where the king hath committed all his power 
judiciall to others, such a render should be to no effect. An 8 H. 6. the 
king doth judge by his Judges (the king having distributed his power 
judiciall to several Courts) And the king hath wholly left matters of judica- 
ture according to his lawes to his Judges.^ 

Therefore, as the interpretation of an agreement is a judicial question, the 
compact between Penn and Lord Baltimore concerning the boundaries of 
Pennsylvania, Delaware and Maryland was referred to a court of justice, 
because it was an agreement, and to that particular court of justice called 
the High Court of Chancery, because that tribunal alone enforced the specific 

1 Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, 1644, 
pp. 70-71. 



EXTENT AND EXERCISE OF JUDICIAL POWER 421 

performance of an agreement, as prayed by Penn in that case. Where 
there was no agreement, the king in council took jurisdiction and decided by 
virtue of his political prerogative, with the advice of his members, who sat 
as advisers. 

From the detailed and closely knit argument of Mr. Justice Baldwin the 
following passage may be quoted, as showing the process by which he reached 
his conclusion, as well as the conclusion itself: 

The king had no jurisdiction over boundary within the realm, without 
he had it in all his dominions, as the absolute owner of the territory, from 
whom all title and power must flow, 1 BI. Com. 241 ; Co. Litt. 1 ; Hob. 322; 
7 D. C. D. 76; Cowp. 205-11 ; 7 Co. 17, b., as the supreme legislator; save a 
limited power in parliament. He could make and unmake boundaries in 
any part of his dominions, except in proprietary provinces. He exercised 
this power by treaty, as in 1763, by limiting the colonies to the Mississippi, 
whose charters extended to the South sea ; by proclamation, which was a 
supreme law, as in Florida and Georgia, 12 Wheat. 524; 1 Laws U. S. 443- 
51 ; by order in council, as between Massachusetts and New Hampshire, 
cited in the argument. But in all cases it was by his political power, which 
was competent to dismember royal, though it was not exercised on the 
chartered or proprietary provinces. MTntosh v. Johnson, 8 Wheaton, 580. In 
council, the king had no original judicial power, 1 Ves. sen. 447. He decided 
on appeals from the colonial courts, settled boundaries, in virtue of his 
prerogative, where there was no agreement; but if there is a disputed agree- 
ment, the king cannot decree on it, and therefore, the council remit it to 
be determined in another place, on the foot of the contract, 1 Ves. sen. 447. 
In virtue of his prerogative, where there was no agreement, 1 Ves. sen. 205, 
the king acts not as a judge, but as the sovereign acting by the advice of 
his counsel, the members whereof do not and cannot sit as judges. By the 
statute 20 E. 3, ch. 1, it is declared, that " the king hath delegated his whole 
judicial power to the judges, all matters of judicature according to the 
laws," 1 Rufif. 246; 4 Co. Inst. 70, 74; he had, therefore, none to exercise: 
and judges, though members of council, did not sit in judicature, but merely 
as his advisers.^ 

And after an elaborate examination of English precedent and cases, including 
the judicial interpretation of compacts between nations, Mr. Justice Baldwin 
concluded : 

From this view of the law of England, the results are clear, that the settle- 
ment of boundaries by the king in council, is by his prerogative; which is 
political power acting on a political question between dependent corpora- 
tions or proprietaries, in his dominions without the realm. When it is done 
in chancery, it is by its judicial power, in " judicature according to the law," 
and necessarily a judicial question, whether it relates to the boundary of 
provinces, according to an agreement between the owners, as Penn v. Balti- 
more [ 1 Ves. sen. 448] ; the title to a feudal kingdom, in a suit appropriate 

* 12 Peters, 739. 



422 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to equity, where the feudal king appears and pleads, as in the case of the 
Isle of Man ; or on an agreement between a foreign sovereign and the East 
India Company, in their mere corporate capacity. But when the company 
assumed the character of a sovereign, assert the agreement to be a " federal 
treaty," between them and the plaintiff, as neighbouring sovereigns, each inde- 
pendent, and the subject matter to be peace and war, political in its nature, 
on which no municipal court can act by the law of nations, chancery has no 
jurisdiction but to dismiss the bill. Not because it is founded on a treaty, 
but because the defendant refused to submit it to judicial power; for, had the 
company not made the objection, by their answer, the court must have pro- 
ceeded as in The King of Spain v. Machado [4 Russell, 225], and decreed 
on the vahdity, as well as the construction of the treaties. The court, in one 
case, could not force a sovereign defendant to submit the merits of the case to 
their cognizance ; but in the other, when he was plaintiff, and a subject was 
a defendant, who appeared and plead, the whole subject matter of the plead- 
ings was decided by judicial power, as a judicial question; and such has been, 
and is the settled course of equity in England.^ 

Armed with these precedents, Mr. Justice Baldwin turns his attention in the 
following passage to the colonies and States of the American Union : 

In the colonies, there was no judicial tribunal which could settle bound- 
aries between them ; for the court of one could not adjudicate on the rights of 
another, unless as a plaintiff. The only power to do it remained in the king, 
where there was no agreement; and in chancery, where there was one, and the 
parties appeared ; so that the question was partly political and partly judicial, 
and so remained till the declaration of independence. Then the states, being in- 
dependent, reserved to themselves the power of settling their own boundaries, 
which was necessarily a purely political matter, and so continued until 1781. 
Then the states delegated the whole power over controverted boundaries to 
congress, to appoint and its court to decide, as judges, and give a final 
sentence and judgment upon it, as a judicial question, settled by specially 
appointed judicial power, as the substitute of the king in council, and the 
court of chancery in a proper case; before the one as a political, and the 
other as a judicial question. 

Then came the constitution, which divided the power between the political 
and judicial departments, after incapacitating the states from settling their 
controversies upon any subject, by treaty, compact, or agreement; and com- 
pletely reversed the long established course of the laws of England. Com- 
pacts and agreements were referred to the political, controversies to the 
judicial power. This presents this part of the case in a very simple and 
plain aspect. All the states have transferred the decision of their controver- 
sies to this Court ; each had a right to demand of it the exercise of the power 
which they had made judicial by the confederation of 1781 and 1788; that 
we should do that which neither states or congress could do, settle the 
controversies between them. We should forget our high duty, to declare to 
litigant states that we have jurisdiction over judicial, but not the power to 
hear and determine political controversies ; that boundary was of a political 
nature, and not a civil one ; and dismiss the plaintiff's bill from our records, 
without even giving it judicial consideration. We should equally forget the 

> 12 Peters. 742-3. 



EXTENT AND EXERCISE OF JUDICIAL POWER 423 

dictate of reason, the known rule drawn by fact and law ; that from the na- 
ture of a controversy between kings or states, it cannot be judicial; that 
where they reserve to themselves the final decision, it is of necessity by their 
inherent political power ; not that which has been delegated to the judges, as 
matters of judicature, according to the law.^ 

In another portion of his opinion, the learned Justice, speaking of the States 
of the American Union, says : 

Those states, in their highest sovereign capacity, in the convention of the 
people thereof ; on whom, by the revolution, the prerogative of the crown, 
and the transcendent power of parliament devolved, in a plenitude unim- 
paired by any act, and controllable by no authority, 6 Wheat. 651 ; 8 Wheat. 
584, 88; adopted the constitution, by which they respectively made to the 
United States a grant of judicial power over controversies between two or 
more states. By the constitution, it was ordained that this judicial power, 
in cases where a state was a party, should be exercised by this Court as 
one of original jurisdiction. The states waived their exemption from judicial 
power, 6 Wheat. 378, 80, as sovereigns by original and inherent right, by 
their own grant of its exercise over themselves in such cases, but which they 
would not grant to any inferior tribunal. By this grant, this Court has 
acquired jurisdiction over the parties in this cause, by their own consent and 
delegated authority; as their agent for executing the judicial power of the 
United States in the cases specified.^ 

In a third and a final passage, for it is impossible to quote or to sum- 
marize the whole opinion, Mr. Justice Baldwin not only states the process, 
the reason for the process, but the procedure to be followed in the actual 
trial and disposition of controversies between States submitted to a court of 
justice : 

The founders of our government could not but know, what has ever 
been, and is familiar to every statesman and jurist, that all controversies 
between nations, are, in this sense, political, and not judicial, as none but 
the sovereign can settle them. In the declaration of independence, the states 
assumed their equal station among the powers of the earth, and asserted 
that they could of right do, what other independent states could do ; " de- 
clare war, make peace, contract alliances ; " of consequence, to settle their 
controversies with a foreign power, or among themselves, which no state, 
and no power, could do for them. They did contract an alliance with France, 
in 1778; and with each other, in 1781 : the object of both was to defend and 
secure their asserted rights as states ; but they surrendered to congress, and 
its appointed Court, the right and power of settling their mutual controver- 
sies; thus making them judicial questions, whether they arose on " boundary, 
jurisdiction, or any other cause whatever." There is neither the authority 
of law or reason for the position, that boundary between nations or states, is, 
in its nature, any more a political question, than any other subject on which 

* 12 Peters, 743-4. 
' Ibid., 720. 



424 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION I 

they may contend. None can be settled without war or treaty, which is by - 
political power; but under the old and new confederacy they could and 
can be settled by a court constituted by themselves, as their own substitutes, 
authorized to do that for states, which states alone could do before. We are 
thus pointed to the true boundary line between political and judicial power, 
and questions. A sovereign decides by his own will, which is the supreme 
law within his own boundary; 6 Peters, 714; 9 Peters, 748; a court, or judge, 
decides according to the law prescribed by the sovereign power, and that law 
is the rule for judgment. The submission by the sovereigns, or states, to a 
court of law or equity, of a controversy between them, without prescribing 
any rule of decision, gives power to decide according to the appropriate law 
of the case; 11 Ves. 294; which depends on the subject matter, the source 
and nature of the claims of the parties, and the law which governs them. 
From the time of such submission, the question ceases to be a political one, 
to be decided by the sic volo, sic jubeo, of political power; it comes to the 
court to be decided by its judgment, legal discretion, and solemn considera- 
tion of the rules of law appropriate to its nature as a judicial question, de- 
pending on the exercise of judicial power; as it is bound to act by known 
and settled principles of national or municipal jurisprudence, as the case 
requires. 

It has never been contended that prize courts of admiralty jurisdiction, 
or questions before them, are not strictly judicial; they decide on questions 
of war and peace, the law of nations, treaties, and the municipal laws of 
the capturing nation, by which alone they are constituted ; a fortiori, if such 
courts were constituted by a solemn treaty between the state under whose au- 
thority the capture was made, and the state whose citizens or subjects suffer 
by the capture. All nations submit to the jurisdiction of such courts over 
their subjects, and hold their final decrees conclusive on rights of property. 
6 Cr., 284-5. 

These considerations lead to the definition of political and judicial power 
and questions ; the former is that which a sovereign or state exerts by his or 
its own authority, as reprisal and confiscation; 3 Ves., 429; the latter is that 
which is granted to a court or judicial tribunal. So of controversies between 
states ; they are in their nature political, when the sovereign or state reserves 
to itself the right of deciding on it; makes it the " subject of a treaty, to be 
settled as between states independent," or " the foundation of representa- 
tions from state to state." This is political equity, to be adjudged by the 
parties themselves, as contradistinguished from judicial equity, administered 
by a court of justice, decreeing the equum et bonum of the case, let who 
or what be the parties before them.^ 

Application QuestioHs political in their nature may thus become judicial by submis- 

oi Nations sioH to a court of justicc, to be decided in accordance with principles of law 

and equity, and we are justified in the belief that the States composing the 
society of nations can, if they will, agree by convention to submit their dis- 
putes to a tribunal of their own creation for the settlement of their contro- 
versies, just as the States composing the American Union agreed by constitu- 
tion to submit their controversies to the Supreme Court of the States. 

' 12 Peters, 736-8. 



XX 

CASE — CONTROVERSY — SUIT 

The act of Congress more particularly mentions civil controversies, a qualification of 
the general word in the Constitution, which I do not doubt every reasonable man will 
think well warranted, for it cannot be presumed that the general word " controversies " 
was intended to include any proceedings that relate to criminal cases, which in all instances 
•that respect the same Government, only, are uniformly considered of a local nature, and 
to be decided by its particular laws. {Mr. Justice Iredell in Chisholm v. Georgia, 2 Dallas, 
419, 431-432, decided m I793-) 

A case in law or equity consists of the right of the one party, as well as of the other, 
and may truly be said to arise under the constitution or a law of the United States, when- 
ever its correct decision depends on the construction of either. {Chief Justice Marshall in 
Cohens v. Virginia, 6 Wheat on, 264, 379, decided in 1821.) 

The article does not extend the judicial power to every violation of the constitution 
which may possibly take place, but to "a case in law or equity," in which a right, under 
such law, is asserted in a Court of justice. If the question can not be brought into a 
Court, then there is no case in law or equity, and no jurisdiction is given by the words of 
the article But if, in any controversy depending in a Court, the cause should depend on 
the validity of such a law, that would be a case arising under the constitution, to which 
the judicial power of the United States would extend. (Chief Justice Marshall in Cohens 
V. Virginia, 6 Wheaton, 264, 405, decided in 1821.) 

That power is capable of acting only when the subject is submitted to it by a party 
who asserts his rights in the form prescribed by law. It then becomes a case, and the 
constitution declares, that the judicial power shall extend to all cases arising under the 
constitution, laws, and treaties of the United States. (Chief Justice Marshall in Osborn v. 
Bank of the United States, 9 Wheaton, 738, 819, decided in 1824.) 

What then is to be done if these limitations of power are transgressed by any State, 
or by the United States? The duty of annulling such usurpations is confided by the Third 
Article of the Constitution to the Supreme Court, and to such inferior Courts as Congress 
may from time to time ordain and establish. But this remarkable power is capable only 
of indirect exercise; it is called into activity by "cases," by actual controversies, to which 
individuals, or States, or the United States, are parties. The point of unconstitutionality 
is raised by the arguments in such controversies , and the decision of the Court follows 
the view which it takes of the Constitution. A declaration of unconstitutionality, not 
provoked by a definite dispute, is unknown to the Supreme Court. {Sir Henry Simmer 
Maine, Popular Government, 1886, pp. 217-218.) 

In order to entitle the party to the remedy a case must be presented appropriate for 
the exercise of judicial power, the rights in danger must be rights of persons or property; 
not merely political rights, which do not belong to the jurisdiction of a court, either in 
law or equity. State of Georgia v. Stanton, 6 Wall. 50, 76. 

When a right is asserted by a party before a court in the manner prescribed by law, 
it then becomes a case to which the judicial power extends. This includes the right of 
both parties to the litigation ; and the case may be said to arise whenever its correct 
decision is dependent upon the construction of the Constitution, laws, or treaties of the 
United States. {Mr. Justice Miller, Lectures on the Constitution of the United States, 
1891, p. 315, note.) 

The President of the United States of America and His Majesty the King of the 
United Kingdom of Great Britain and Ireland and of the British Dominions beyond the 
Seas, Emperor of India, desiring in pursuance of the principles set forth in Articles 15-19 
vOf the Convention for the pacific settlement of international disputes, signed at The 

425 



426 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

Hague July 29, 1899, to enter into negotiations for the conclusion of an Arbitration Con- 
vention, have named as their Plenipotentiaries, to wit: 

The President of the United States of America, Elihu Root, Secretary of State of the 
United States, and 

His Alajesty the King of the United Kingdom of Great Britain and Ireland and of 
the British Dominions beyond the Seas, Emperor of India, The Right Honorable James 
Bryce, O. M., 

who, after having communicated to one another their full powers, found in good and 
due form, have agreed upon the following articles : 

Article I. Differences which may arise of a legal nature or relating to the inter- 
pretation of treaties existing between the two Contracting Parties and which it may not 
have been possible to settle by diplomacy, shall be referred to the Permanent Court of 
Arbitration established at The Hague by the Convention of the 29th of July, 1899, 
provided, nevertheless, that they do not affect the vital interests, the independence, or 
the honor of the two Contracting States, and do not concern the interests of third 
Parties. 

Article II. In each individual case the High Contracting Parties, before appealing 
to the Permanent Court of Arbitration, shall conclude a special Agreement defining 
clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods 
to be fixed for the formation of the Arbitral Tribunal and the several stages of the 
procedure It is understood that such special agreements on the part of the United 
States will be made by the President of the United States, by and with the advice and 
consent of the Senate thereof; His Majesty's Government reserving the right before 
concluding a special agreement in any matter affecting the interests of a self-governing 
Dominion of the British Empire to obtain the concurrence therein of the Government 
of that Dominion. 

Such Agreements shall be binding only when confirmed by the two Governments by 
an Exchange of Notes. 

Article III. The present Convention shall be ratified by the President of the 
United States of America by and with the advice and consent of the Senate thereof, 
and by His Britannic Majesty. The ratifications shall be exchanged at Washington as 
soon as possible, and the Convention shall take effect on the date of the exchange of 
its ratifications. 

Article IV. The present Convention is concluded for a period of five years, dating 
from the day of the exchange of its ratifications. 

Done in duplicate at the City of Washington, this fourth day of April, in the year 
1908. 

Elihu Root [seal] 
James Bryce [seal] 
(Arbitration Convention between the United States and Great Britain, Signed at Wash- 
ington April 4, 1908. U. S. Statutes at Large, Vol. XXXV, pp. 1960-1961.) 

The high contracting powers agree to refer to the existing Permanent Court of Arbi- 
tration at The Hague, or to the Court of Arbitral Justice proposed at the Second Hague 
Conference when established, or to some other Arbitral Tribunal, all disputes between 
them (including those affecting honor and vital interests) which are of a justiciable char- 
acter, and which the powers concerned have failed to settle by diplomatic methods. The 
powers so referring to arbitration agree to accept and give effect to the award of the 
Tribunal. 

Disputes of a justiciable character are defined as disputes as to the interpretation of 
a treaty, as to any question of international law, as to the existence of any fact which if 
established would constitute a breach of any international obligation, or as to the nature 
and extent of the reparation to be made for any such breach. 

Any question which may arise as to whether a dispute is of a justiciable character is 
to be referred for decision to the Court of Arbitral Justice when constituted, or, until it 
is constituted, to the existing Permanent Court of Arbitration at The Hague. (Article 
for an International Convention Defining Disputes of a Justiciable Character, proposed by 
Elihu Root, and printed in the Proceedings of the American Society of International Law, 
1919. P- 50, note I.) 



CHAPTER XX 

CASE CONTROVERSY - 



The entire judicial power of the United States, created by the Constitu- ^^p' 
tion, is not only extended to all cases in law and equity arising under the 
Constitution, the laws of the United States, and treaties made or which shall °°'^ 
be made under their authority; but its exercise depends on the nature of a 
case in law or equity of the kind specified, inasmuch as there is no way of 
obtaining the opinion of Federal courts and of their judges upon the Con- 
stitution, law or equity, unless a specific case comes before them in litigation 
by parties claiming a right under the provisions of one or other of these 
sources. The individual is protected against unlawful action on the part of a 
fellow-citizen, a State of the Union, or the Government of that Union; the 
rights of the individual States are guarded against the encroachment of the 
Government of the United States, or in controversies between themselves, by 
a case in law or equity begun in the courts. The Government of the United 
States is protected against the unlawful conduct of the individual and assaults 
of the States by a case in law or equity, submitted to the courts for their con- 
sideration and decision. The threefold division of power among the depart- 
ments of that Government is maintained by the simple expedient of a case in 
law or equity, differing, indeed, in purpose ; modified, it may be, in form, but 
identical in substance with the case in law or equity of a private suitor. For 
if jurisdiction depends upon a case, a suit or controversy, it is necessary to 
determine at the very threshold the sense in which the word case, suit or 
controversy is used in connection with the judicial power. For if the matter 
is not a case, suit or controversy, falling within the proper exercise of this 
power, there is nothing whereof the court can take jurisdiction, and there is 
nothing to be decided. If we are, as so often stated, a government of laws, not 
of men, it is the court which interprets the laws, passes upon the conduct 
of men, and stays the hand of government itself if only a case arise under 
the Constitution, the laws and treaties of the United States, and come before 
courts of justice in the ordinary form of case, suit, or controversy, in law 
or equity. 

In the leading case of Marbury v. Madison (1 Cranch, 137), decided in 
1803, in which John Marshall, as Chief Justice, first disclosed to the bench 
and bar his capacity as a judge, he defined a case to be a suit instituted accord- 
ing to the regular course of judicial procedure. In two later cases he 

427 



reme 



Functions 
in Cases 



428 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANI£ATION 

either had or took occasion to go into the details of a case, to analyze and 
to state its essentials in terms which his successors have been content to repeat 
and to follow. In Cohens v. Virginia- (6 Wheaton, 264, 379), decided in 
1821, the Chief Justice said: 

A case in law or equity consists of the right of the one party, as well 
as of the other, and may truly be said to arise under the constitution or a 
law of the United States, whenever its correct decision depends on the con- 
struction of either. 

In a later passage of his opinion (405), he adds : 

The article does not extend the judicial power to every violation of the 
constitution which may possibly take place, but to " a case in law or equity," 
in which a right, under such law, is asserted in a court of justice. If the 
question cannot be brought into a court, then there is no case in law or 
equity, and no jurisdiction is given by the words of the article. But if, in 
any controversy depending in a court, the cause should depend on the 
validity of such a law, that would be a case arising under the constitution^, 
to which the judicial power of the United States would extend. 

And, immediately following this passage, the Chief Justice takes up and 
defines the term suit, used in the 11th Amendment apparently synonymous 
with case, stating not only the nature of a suit, but how and when it begins: 

"Suit" What is a suit? We understand it to be the prosecution or pursuit of 

^^^'^^^ some claim, demand or request ; in law language, it is the prosecution 

of some demand in a Court of justice. The remedy for every species of 
wrong is, says Judge Blackstone, " the being put in possession of that right 
whereof the party injured is deprived." " The instruments whereby this 
remedy is obtained, are a diversity of suits and actions, which are defined 
by the Mirror, to be ' the lawful demand of one's right ; ' or, as Bracton 
and Fleta express it, in the words of Justinian, ' jus prosequendi in judicio 
quod alicui dehetur.' " Blackstone then proceeds to describe every specie 
of remedy by suit ; and they are all cases where the party suing claim; 
to obtain something to which he has a right. 

To commence a suit is to demand something by the institution of proce 
in a Court of justice ; and to prosecute the suit, is, according to the common 
acceptation of language, to continue that demand. By a suit commenced 
by an individual against a State, we should understand process sued out 
by that individual against the State, for the purpose of establishing some 
claim against it by the judgment of a court; and the prosecution of that 
suit is its continuance. Whatever may be the stages of its progress, the 
actor is still the same.^ 

Finally, in Oshorn v. Bank of the United States (9 Wheaton, 72>7, 819), 
decided in 1824, the same Chief Justice, recurring to this question, thus 
discussed it in its larger as well as in its technical bearings: 

' 6 Wheaton, 407-8. 



I 



J" 
ioJL 

1 



i 



CASE — CONTROVERSY — SUIT 429 

It is said, that the legislative, executive and judicial powers of every 
well-constructed government, are co-extensive with each other; that is, 
they are potentially co-extensive. The executive department may consti- 
tutionally execute every law which the legislature may constitutionally 
make, and the judicial department may receive from the legislature the 
power of construing every such law. All governments which are not 
extremely defective in their organization, must possess, within themselves, 
the means of expounding, as well as enforcing, their own laws. If we 
examine the constitution of the United States, we find, that its framers kept 
this great political principle in view. The 2d article vests the whole execu- 
tive power in the president ; and the 3d article declares, " that the judicial 
power shall extend to all cases in law and equity, arising under this consti- 
tution, the laws of the United States, and treaties made, or which shall be 
made, under their authority." 

This clause enables the judicial department to receive jurisdiction to 
the full extent of the constitution, laws and treaties of the United States, 
when any question respecting them shall assume such a form that the 
judicial power is capable of acting on it. That power is capable of acting 
only when the subject is submitted to it, by a party who asserts his rights 
in the form prescribed by law. It then becomes a case, and the constitution 
declares, that the judicial power shall extend to all cases arising under the 
constitution, laws and treaties of the United States.^ 

So far, case or suit has been considered ; but the Constitution extends the 
judicial power to controversies between two or more States, not to all con- 
troversies — inasmuch as some of them might be political in character, and 
therefore more fitted for treaty or compact than judicial decision — but to 
controversies of a justiciable nature, to which the judicial power can prop- 
erly extend. This phase of the question arose in the case of Chisholm v. 
Georgia (2 Dallas, 419, 432), decided in 1793, in which Mr. Justice Iredell 
said, commenting upon the judiciary act of 1789, in an opinion which has 
commended itself to posterity: 

The act of Congress more particularly mentions civil controversies, a 
qualification of the general word in the Constitution, which I do not doubt 
every reasonable man will think well warranted, for it cannot be presumed, 
that the general word " controversies " was intended to include any pro- 
ceedings that relate to criminal cases, which in all instances that respect 
the same Government only, are uniformly considered of a local nature, and to 
be decided by its particular laws. 

In In re Pacific Railway Commission (32 Fed. Rep., 241, 255), decided ^^froversies 
in 1887, Mr. Justice Field, sitting at circuit, had occasion to consider the 
terms cases and controversies, to be found in the second section of the third 
article of the Constitution, regarding which he said: 

' The judicial article of the constitution mentions cases and controvei*- 
sies. The term " controversies," if distinguishable at all from " cases," is 

'9 Wheaton, 818-19. 



430 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

SO in that it is less comprehensive than the latter, and includes only suits 
of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432; 1 Tuck. Bl. 
Comm. App. 420, 421. By cases and controversies are intended the claims 
of litigants brought before the courts for determination by such regular 
proceedings as are established by law or custom for the protection or 
enforcement of rights, or the prevention, redress, or punishment of wrongs. 
Whenever the claim of a party under the constitution, laws, or treaties of 
the United States takes such a form that the judicial power is capable of 
acting upon it, then it has become a case. The term implies the existence 
of present or possible adverse parties whose contentions are submitted to 
the court for adjudication. 

In Oshorn v. U. S., 9 Wheat. 819, the supreme court, speaking by Chief 
Justice Marshall, after quoting the third article of the constitution declaring 
the extent of the judicial power of the United States, said: 

" This clause enables the judicial department to receive jurisdiction 
to the full extent of the constitution, laws, and treaties of the United 
States, when any question respecting them shall assume such a form 
that the judicial power is capable of acting on it. That power is 
capable of acting only when the subject is submitted to it by a party 
who asserts his rights in the form prescribed by law. It then becomes 
a case, and the constitution declares, that the judicial power shall 
extend to all cases arising under the constitution, laws, and treaties 
of the United States." 

In his Commentaries on the Constitution, Mr. Justice Story says: 

" It is clear that the judicial department is authorized to exercise 
jurisdiction to the full extent of the constitution, laws, and treaties of 
the United States, whenever any question respecting them shall assume 
such a form that the judicial power is capable of acting upon it. When 
it has assumed such a form, it then becomes a case; and then, and not 
till then, the judicial power attaches to it. A case, then, in the sense 
of this clause of the constitution, arises when some subject touching 
the constitution, laws, or treaties of the United States is submitted to 
the courts by a party who asserts his rights in the form prescribed 
by law." ^ 

And Mr. Justice Story refers in a note to the speech of Marshall on 
the case of Robbins, in the house of representatives, before he became chief 
justice, which contains a clear statement of the conditions upon which the 
judicial power of the United States can be exercised. His language was: 

" By extending the judicial power to all cases in law and equity, 
the constitution has never been understood to confer on that depart- 
ment any political power whatever. To come within this description, 
a question must assume a legal form for forensic litigation and judi- 
cial decision. There must be parties to come into court, who can be 
reached by its process, and bound by its power; whose rights admit 
of ultimate decision by a tribunal to which they are bound to submit." * 

* 32 Federal Reporter, 256. 



CASE — CONTROVERSY — SUIT 431 

The distinction between controversies of a civil and criminal nature, first 
mentioned by Mr. Justice Iredell in the Chisholm case, and quoted v^ith 
approval by Mr. Justice Field, was affirmed by the Supreme Court in the 
case of Wisconsin v. Pelican Insurance Company (127 U. S., 265), decided 
in 1888 by Mr. Justice Gray, speaking for a unanimous court. 

But cases and controversies are apparently considered as synonymous, 
differing, if at all, in that the latter include only suits of a civil nature. But 
a case and a controversy are identical in nature and coextensive as far as 
they go, as was admirably pointed out by Putnam, Circuit Justice, who said, 
in the case of King v. McLean Asylum (64 Fed. Rep., 332, 335-6), decided 
in 1894: 

The appellees rely on a supposed distinction between the use of the 
word " cases " and the word " controversies " in the section of the consti- 
tution defining the federal judicial power. That section uses the word 
" cases " in the first three clauses, namely, " cgises, in law and equity," aris- 
ing under the constitution and the laws and treaties of the United States, 
" cases afifecting ambassadors, other public ministers and consuls," and 
" cases of admiralty and maritime jurisdiction." So far it has relation 
mainly, although not entirely, to the subject-matter of the litigation, and 
not to the parties involved. It then changes to the word " controversies," 
and uses this with reference to " controversies to which the United States 
shall be a party," " to controversies between two or more states," and then, 
without repeating the word, continues " between a state and citizens of 
another state ; between citizens of different states ; between citizens of the 
same state claiming lands under grants of different states, and between a 
state, or the citizens thereof, and foreign states, citizens or subjects." . . . 
The change under consideration, from the word " cases " to the word " con- 
troversies," will be found to have been a mere matter of style, and to have 
no relation to any limitation or extension of the class of questions to be 
adjudicated. As we have already said, so long as this section of the con- 
stitution speaks especially with reference to the nature of the questions 
involved, it uses the word " cases," but, when it considers more particularly 
proceedings having relation to the existence of parties, it uses the word 
" controversies," probably because, when parties are spoken of as arrayed 
against each other, literary style suggested the change. 

The nature of a case was considered, not merely in its constitutional but ""ct™*"'""*' 
in its international aspect, in La Abra Silver Mining Co. v. United States 
(175 U. S., 423, 457), decided in 1899, in which the Supreme Court was 
obliged to consider an award in behalf of a citizen of the United States, 
rendered in his favor by a mixed commission organized under the treaty of 
July 4, 1868, between the United States and Mexico, and which the latter 
country alleged to be vitiated by the fraud of the American claimant, which, 
to our shame be it said, proved to be only too true. The Congress, which 
might have determined the matter, referred it to the Court of Claims, in 
accordance with the observation of Mr. Justice Curtis, speaking for the 



4-32 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

court in Murray v. Hoboken (18 Howard, 272, 284), decided in 1855, who, 
after saying that the Congress can neither " withdraw from judicial cog- 
nizance any matter which, from its nature, is the subject of a suit at the 
common law, or in equity, or admiralty; nor, on the other hand, can it 
bring under the judicial power a matter which, from its nature, is not a 
subject for judicial determination," stated, however, that " there are mat- 
ters, involving public rights, which may be presented in such form that the 
judicial power is capable of acting on them, and which are susceptible of 
judicial determination, but which congress may or may not bring within 
the cognizance of the courts of the United States, as it may deem proper." 

The objection taken by counsel for the Silver Mining Co. was " that 
the Court of Claims has no jurisdiction over this matter, because it is not 
a ' case ' within the meaning of the Constitution, nor is it a * controversy '' 
to which the United States is a party." The question whether fraud entered 
into and vitiated a transaction is clearly a judicial question, in the sense 
that it can be investigated and decided by a court of justice, and therefore 
a question involving this is of necessity a suit or a controversy in the sense 
of the Constitution. 

As previously stated, however, the government can not consult the court 
nor take the opinion of the justices at its discretion. It can only do so in 
a judicial proceeding, and not in a moot but in a controverted case. It was, 
therefore, necessary to show that the United States had such an interest in 
the award as to enable it to appear as a party and in its own behalf before 
the court. 

The interest of the United States was manifest, in that it had espoused 
and presented the claim on behalf of its citizens to the mixed commission, 
which it should not have done if such claim lacked equity and was void in 
law; and in that the moneys awarded by the mixed commission passed to 
the United States and were only payable to the claimant to whom the Gov- 
ernment i's satisfied they are properly due. In the course of his opinion, 
Mr. Justice Harlan, speaking for a unanimous court, referred to the defini- 
tion of case given in the decisions already quoted, and discussed the case 
of Gordon v. United States (2 Wallace, 561; 117 U. S., 697), decided in 
1864, to the effect that finality of decision is essential to the exercise of 
judicial power. In the following passage from his opinion, he brings the 
question within the requirements of the Supreme Court in the matter of 
case, suit, or controversy: 

The act of 1892 is to be taken as a recognition, so far as the United 
States is concerned, of the legal right of the Company to receive the 
moneys in question unless it appeared upon judicial investigation that the 
United States was entitled, by reason of fraud practised in the interest of 



CASE — CONTROVERSY — SUIT 433 

that corporation, to withhold such moneys from it. Here then is a matter 
subjected to judicial investigation in respect of which the parties assert 
rights — the United States insisting upon its right under the principles of 
international comity to withhold moneys received by it under a treaty on 
account of a certain claim presented through it before the Commission 
organized under that treaty in the belief, superinduced by the claimant, that 
it was an honest demand ; the claimant insisting upon its absolute legal 
right under the treaty and the award of the Commission, independently of 
any question of fraud, to receive the money and disputing the right of the 
United States upon any ground to withhold the sum awarded. XVe enter- 
tain no doubt these rights are susceptible of judicial determination within 
the meaning of the adjudged cases relating to the judicial power of the 
courts of the United States as distinguished from the powers committed 
to the Executive branch of the Government.^ 

But the case or controversy contemplated by the Constitution does not 
mean a moot or friendly case. It means one which has arisen under law or 
equity and in which the parties before the court as litigants would, in primi- 
tive times, have settled their dispute by force; for the court is a substitute 
for self-redress of litigants, whether those litigants are individuals or 
States. It is of the utmost importance to bear in mind this fact, because 
the judicial power of the United States is limited to cases involving a con- 
test under law or equity, of which the courts can therefore take jurisdic- 
tion, and which it decided, thus withdrawing from them the power to act 
in an advisory capacity. 

■ In the recent case of Muskrat v. United States (219 U. S., 346, 354), 
decided in 1911, the Supreme Court, per Mr. Justice Day, thus refers to 
the opinion of the judges of the Supreme Court taken extra-judicially, on 
the question of their advisory power: 

In 1793, by direction of the President, Secretary of State Jefferson 
addressed to the Justices of the Supreme Court a communication soliciting 
their views upon the question whether their advice to the executive would 
be available in the solution of important questions of the construction of 
treaties, laws of nations and laws of the land, which the Secretary said 
were often presented under circumstances which " do not give cognisance 
of them to the tribunals of the country." The answer to the question was 
postponed until the subsequent sitting of the Supreme Court, when Chief 
Justice Jay and his associates answered to President Washington that in 
consideration of the lines of separation drawn by the Constitution between 
the three departments of government, and being judges of a court of last 
resort, afforded strong arguments against the propriety of extrajudicially 
deciding the questions alluded to, and expressing the view that the power 
given by the Constitution to the President of calling on heads of depart- 
ments for opinions " seems to have been purposely, as well as expressly, 
united to the executitve departments." Correspondence and Public Papers 
of John Jay, vol. 3, p. 486. 

*La Abra Co. v. U. S., 175 U. S., 460-1. 



434 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

This action of the Justices seems to have settled the point, because, from 
that day to this, the Supreme Court has not acted in an advisory capacity. 
We have also an adjudged case that the judicial power of the Constitution 
does not extend to a moot or friendly case, for in Chicago and Grand Trunk 
Railway Co. v. Wellman (143 U. S., 339, 344), decided in 1891, the court 
had occasion to consider this matter. The Supreme Court of Michigan, 
from which the case was brought by writ of error to the Supreme Court, 
had said, per Mr. Justice Morse: 

It being evident from the record that this was a friendly suit between 
the plaintiff and the defendant to test the constitutionality of this legisla- 
tion, the attorney general, when it was brought into this court upon writ 
of error, very properly interposed and secured counsel to represent the pub- 
He interest. In the stipulation of facts or in the taking of testimony in 
the court below neither the attorney general nor any other person interested 
for or employed in behalf of the people of the State took any part. What 
difference there might have been in the record had the people been rep- 
resented in the court below, however, under our view of the case, is not 
of material inquiry. 

In the Supreme Court of the United States, Mr. Justice Brewer refers to 
this fact, and thus speaks on behalf of his brethren: 

Whenever, in pursuance of an honest and actual antagonistic assertion 
of rights by one individual against another, there is presented a question 
involving the validity of any act of any legislature. State or Federal, and 
the decision necessarily rests on the competency of the legislature to so 
enact, the court must, in the exercise of its solemn duties, determine whether 
the act be constitutional or not ; but such an exercise of power is the ulti- 
mate and supreme function of courts. It is legitimate only in the last 
resort, and as a necessity in the determination of real, earnest and vital 
controversy between individuals. It never was the thought that, by means 
of a friendly suit, a party beaten in the legislature could transfer to the 
courts an inquiry as to the constitutionality of the legislative act.^ 

* 143 U. S., 345. 



XXI 

JUDICIAL POWERS AND THEIR RELATION TO LAW 

AND EQUITY, TO ADMIRALTY, MARITIME 

AND INTERNATIONAL LAW 

In appealing to the common law, as the standard of exposition, in all doubts as to 
the meaning of written instruments ; there is. safety, certainty, and authority. The institu- 
tions of the colonies were based upon it; it was their system of jurisprudence, with only 
local exceptions, to suit the condition of the colonists, who claimed it as their birth-right 
and inheritance, 9 Cr. 333, in its largest sense, as including the whole system of English 
jurisprudence, 1 Gall. 493; the inexhaustible fountain from which we draw our laws, 

9 S. & R. 330, 39, 58. So it continued after the colonies became states, in most of which 
the common law was adopted by acts of assembly, which gave it the force of a statute, 
from the time of such adoption, and as it was then ; so that in the language of this 
Court — " At the adoption of the constitution, there were no states in this Union, the basis 
of whose jurisprudence was not essentially, that of the common law in its widest meaning; 
and probably no states were contemplated, in which it would not exist." 3 Pet, 446, 8. 
It is also the basis on which the federal system of jurisprudence was erected by the con- 
stitution, the judiciary and process acts, which refer to "cases in law and in equity," "suits 
at common lazv," " the common laiif, the princi('les and usages of lazv," as thev had at the 
time been defined and settled in England; S Cr. 222; 3 \Vh. 221; 4 \Vh. 115. 16; 7 Wh. 45; 

10 Wh. 29, 32, 56, 8 : 1 Pet. 613 : and were adopted as then understood by the old states. 
(Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution 
and Government of the United States, 1837, pp. 3-4.) 

But whatever may in England be the binding authority of the common law decisions 
upon this subject, in the United States we are at liberty to reexamine the doctrines, and 
to construe the jurisdiction of the admiralty upon enlarged and liberal principles. The 
constitution has delegated to the judicial power of the United States cognizance "of all 
cases of admiralty and maritime jurisdiction;" and the act of Congress (24 Sept. 1789, 
ch. 20, s. 9) has given to the District Court "cognizance of all civil causes of admiralty 
and maritime jurisdiction, including all seizures under laws of impost, navigation or trade, 
of the United States, where the seizures are made on waters navigable from the sea by 
vessels of ten or more tons burthen ; within their respective districts, as well as upon the 
high seas." . . . 

On the whole, I am, without the slightest hesitation, ready to pronounce, that the dele- 
gation of cognizance of " all civil cases of admiralty and maritime jurisdiction " to the 
courts of the United States comprehends all maritime contracts, torts, and injuries. The 
latter branch is necessarily bounded by locality; the former extends over all contracts, 
(wheresoever they may be made or executed, or whatsoever may be the form of the 
stipulations,) which relate to the navigation, business or commerce of the sea. {Mr. Justice 
Story, in De Lovio v.Boit, 2 Gallison, 398, 467-468, 474-475, decided in 1815.) 

Judicial power, in all cases of admiralty and maritime jurisdiction, is delegated by 
the Constitution to the Federal Government in general terms, and courts of this character 
had then been established in all commercial and maritime nations, differing, however, 
materiallyjn different countries in the powers and duties confided to them; the extent of 
the jurisdiction conferred depending very much upon the character of the government in 
which they were created ; and this circumstance, with the general terms of the grant, 
rendered it difficult to define the exact limits of its power in the United States. 

This difficulty was increased by the complex character of our Government, where 
separate and distinct specified powers of sovereignty are exercised by the United States and a 
State independently of each other within the same territorial limits. And the reports of 
the decisions of this court will show that the subject has often been before it, and care- 
fully considered, without being able to fix with precision its definite boundaries ; but cer- 

435 



436 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



41 



tainly no State law can enlarge it, nor can an act of Congress or rule of court make it 
broader than the judicial power may determine to be Us true limits. And this boundary 
IS to be ascertained by a reasonable and just construction of the words used m the 
Constitution, taken in connection with the whole instrument, and the purposes for which 
admiralty and maritime jurisdiction was granted to the Federal Government. {Mr. Chief 
Justice Taney, in The Steamer St. Latvrence, i Black, 322, 326-327, decided in 1861.) 

Guided by these sound principles, this court has felt itself at liberty to recognize the 
admiralty jurisdiction as extending to localities and subjects which, by the jealousy of the 
common law, were prohibited to it in England, but which fairly belong to it on every 
ground of reason when applied to the peculiar circumstances of this country, with its 
extended territories, its inland seas, and its navigable rivers, especiallly as the narrow 
restrictions of the English law had never prevailed on this side of the Atlantic, even in 
colonial times. {Mr. Justice Bradley in The Lottawanna, 21 Wallace, 558, 376, decided in 
1874.) 

From all that has been said, these things would seem to be clear : First, that the maritime 
law, existing as it does by the common consent of nations, and, being a general law, 
cannot be changed or modified as to its general operation by any particular sovereignty; 
second, that it has force in any country only by its adoption, express or implied, by that 
country, and may be modified in its special operation m that jurisdiction at the will of 
that special sovereignty; third, that it is by such adoption part of the federal law of the 
United States, and incapable of modification by state enactment, — Congress having ex- 
clusive power, under the constitution, " to regulate cornmerce with foreign nations, and 
among the several states, and with the Indian tribes; and the judicial power of the 
United States " exclusive of the state courts," extending " to all cases of admiralty and 
maritime jurisdiction." {Hughes, Circuit Judge, in The Manhasset, 18 Federal Reporter, 
918, 922, decid-ed 1884.) 

Now besides that law which simply concerneth men as men, and that which belongeth 
unto them as they are men linked with others in some form of politic society, there is 
a third kind of law which toucheth all such several bodies politic, so far forth as one 
of them hath public commerce with another. And this third is the Law of Amotions. 
{Richard Hooker, Of the Laws of Ecclesiastical Polity, 1394, Church edition, 186S, Book I, 
Section JO, p. 64.) 

I remember in a case before Lord Talbot, of Buvot v. Barbiit, (1736) . . . Lord 
Talbot declared a clear opinion — " That the law of nations, in its full extent was part of 
the law of England " — " That the Act of Parliament was declaratory ; and occasioned by 
a particular incident." — " That the law of nations was to be collected from the practice of 
different nations, and the authority of writers." Accordingly, he argued and determined 
from such instances, and the authority of Grotius, Barbeyrac, Binkershoek, VViquefort, &c. 
there being no English writer of eminence, upon the subject. 

I was counsel in this case; and have a full note of it. {Lord Chief Justice Mansfield 
in Triquet v. Bath, 3 Burrow, 147S, 1480-1481, decid^ed in 1764, English Reports, Full Re- 
print, Vol. XCVH, King's Bench Division, XXVI, 1909, pp. 937-938.) 

The Law of Nations, founded upon Justice, Equity, Convenience, and the Reason of the 
Thing, and confirmed by long Usage, . . . {Report of the lazv officers of the Croivn, dated 
January 18, 1733, signed Geo. Lee, G. Paul, D. Ryder, IV. Murray [Lord Mansfield, to whom 
the definition is commonly attributed], printed in Sir Ernest Satow, The Silesian Loan and 
Frederick the Great, 1913, p. 82.) 

The law of nations is a system of rules, deducible by natural reason, and established by 
universal consent among the civilized inhabitants of the world ; in order to decide all 
disputes, to regulate all ceremonies and civilities, and to insure the observance of justice 
and good faith, in that intercourse which must frequently occur between two or more 
independent states, and the individuals belonging to each. This general law is founded 
upon this principle, that different nations ought in time of peace to do one another all 
the good they can; and, in time of war, as little harm as possible, without prejudice to 
their own real interests. And, as none of these states will allow a superiority in the other, 
therefore neither can dictate or prescribe the rules of this law to the rest; but such rules 
must necessarily result from those principles of natural justice, in which all the learned 
of every nation agree ; or they depend upon mutual compacts or treaties between the 
respective communities; in the construction of which there is also no judge to resort to. 



JUDICIAL POWERS AND THEIR RELATION TO LAW 437 

but the law of nature and reason, being the only one in which all the contracting parties 
are equally conversant, and to which they are equally subject. 

In arbitrary states this law, wherever it contradicts or is not provided for by the municipal 
law of the country, is enforced bv the royal power: but since in England no royal power 
can introduce a new law, or suspend the execution of the old, therefore the law of nations 
(wherever any question arises which is properly the object of it's jurisdiction) is here 
adopted in its full extent by the common law, and is held to be a part of the law of the 
land. And those acts of parliament, which have from time to time been made to enforce 
this universal law, or to facilitate the execution of it's decisions, are not to be considered 
as introductive of any new rule, but merely as declaratory of the old fundamental consti- 
tutions of the kingdom ; without which it must cease to be a part of the civilized world. 
(Sir IVilliatn Blackstone, Commentaries on the Laws of England, Book IV, 1769, ch. 
5, pp. 66-67.) 

It has also been observed, that an act of congress ought never to be construed to violate 
the law of nations, if any other possible construction remains, and consequently, can never 
be construed to violate neutral rights, or to affect neutral commerce, further than is war- 
ranted by the law of nations as understood in this country. These principles are believed 
to be correct, and they ought to be kept in view, in construing the act now under consid- 
eration. {Chief Justice Marshall, in The Charming Betsy, 2 Cranch, 64, 118, decided in 
1804.) 

Until such an act be passed, the court is bound by the law of nations, which is a part 
of the law of the land. {Chief Justice Marshall in The Nereide, 9 Cranch, 388, 423, decided 
in 18 1 5.) 

The law of nations is the great source from which we derive those rules, respecting 
belligerent and neutral rights, which are recognized by all civilized and commercial states 
throughout Europe and America. This law is in part unwritten, and in part conven- 
tional To ascertain that which is unwritten, we resort to the great principles of reason 
and justice: but as these principles will be differently understood by different nations, 
under different circumstances, we consider them as being, in some degree, fixed and 
rendered stable by a series of judicial decisions. The decisions of the courts of every 
country, so far as they are founded upon a law common to every country, will be received, 
not as authority, but with respect. The decisions of the courts of every country show 
how the law of nations, in the given case, is understood in that country, and will be 
considered in adopting the rule which is to prevail in this. 

Without taking a comparative view of the justice or fairness of the rules established 
in the British courts, and of those established in the courts of other nations, there are 
circumstances not to be excluded from consideration, which give to those rules a claim 
to our attention that we cannot entirely disregard. The United States having, at one 
time, formed a component part of the British empire, their prize law was our prize law. 
When we separated, it continued to be our prize law, so far as it was adapted to our 
circumstances, and was not varied by the power which was capable of changing it {Chief 
Justice Marshall, in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, igi, 198, decided in 
181 5.) 

International law is part of our law, and must be ascertained and administered by the 

:j courts of justice of appropriate jurisdiction, as often as questions of right depending upon 

it are duly presented for their determination. For tliis purpose, where there is no treaty, 

and no controlling executive or legislative act or judicial decision, resort must be had to 

the customs and usages of civilized nations; and, as evidence of these, to the works of 

jurists and commentators, who by years of labor, research and experience, have made 

themselves peculiarly well acquainted with the subjects of which they treat. Such works 

are resorted to by judicial tribunals, not for the speculations of their authors concerning 

what the law ought to be, but for trustworthy evidence of what the law really is. {Mr. 

ii Justice Gray, in The Paqn-ct^e Habana, 175 United States Reports, 677, 700, decided in 

il 1900.) 



CHAPTER XXI 

JUDICIAL POWERS AND THEIR RELATION TO LAW AND EQUITY, TO ADMIRALTY, 
MARITIME AND INTERNATIONAL LAW 

tion It will be observed that the judicial power under the Constitution does 

Law " 

Equity" not extcnd to all cases; but to cases of law and equity. The question arises 
as to the meaning to be attached to law and equity in this connection, as 
they affect the nature and extent of the case, to which alone it is to extend. 
The importance of precision in this matter and the consequences that would 
flow from a misconception, have never been better stated by the great Chief 
Justice from the bench than they were by him upon the floor of the House 
of Representatives in his speech on the Robbins case, delivered in 1800. In 
the course of a debate, to which the extradition of Jonathan Robbins gave 
rise. Representative Marshall said: 

A case in law or equity was a term well understood, and of limited sig- 
nification. It was a controversy between parties which had taken a shape 
for judicial decision. If the Judicial power extended to every question 
under the Constitution, it would involve almost every subject proper for 
Legislative discussion and decision ; if, to every question under the laws 
and treaties of the United States, it would involve almost every subject 
on which the Executive could act. The division of power which the 
gentleman had stated, could exist no longer, and the other departments 
would be swallowed up by the Judiciary. ... By extending the Judicial 
power to all cases in law and equity, the Constitution had never been under- 
stood to confer on that department any political power whatever. To come 
within this description, a question must assume a legal form for forensic 
litigation and judicial decision. There must be parties to come into court, 
who can be reached by its process, and bound by its power; whose rights 
admit of ultimate decision by a tribunal to which they are bound to submit.^ 



Infl 

of English 



It is common knowledge that technical terms employed in the Constitu- 
Tenninoiogy ^Jqjj ^^^ ^q j^g taken iu the sense in which they were understood in English 

jurisprudence; because the law of England, no less assuredly than the lan- 
guage of England, in which the laws were expressed, accompanied the 
colonist as a matter of course. We have good authority for the assertion 
that' the law of England was a favorite study of his successors, and that 
they were familiar with its principles. In Edmund Burke's speech on con- 

^ Annals of Congress, Vol. 10, p. 606. Session of March 7, 1800. 

438 



JUDICIAL POWERS AND THEIR RELATION TO LAW 439 

ciliation with America, delivered in the House of Commons on March 22, 
1775, that great statesman and friend of the colonies said: 

In no country perhaps in the world is the law so general a study. The 
profession itself is numerous and powerful; and in most provinces it takes 
the lead. The greater number of the deputies sent to the congress were 
lawyers. But all who read, and most do read, endeavor to obtain some 
smattering in that science. I have been told by an eminent bookseller, that 
in no branch of his business, after tracts of popular devotion, were so many 
books as those on the law exported to the plantations. The colonists have 
now fallen into the way of printing them for their own use. I hear that 
they have sold nearly as many of Blackstone's Commentaries in America 
as in England.^ 

It is therefore to be expected that, when terms of municipal law are fnd*^^*°°^ 
found in the Constitution, they are to be understood in the sense in which ^'^"^^ 
they were used in Blackstone's Commentaries ; and, when the law of nations 
is referred to, that its principles are to be understood in the sense in which 
Vattel defined them. 

On August 22, 1787, the question of an ex post facto law was before the 
Federal Convention, and there appearing to be some confusion as to its exact 
meaning, Mr. Madison reports in his notes that a week later " M^ Dick- 
enson mentioned to the House that on examining Blackstone's Com- 
mentaries, he found that the terms ' ex post facto ' related to criminal cases 
only." ^ And in Blackstone's sense the phrase is to be construed, as appears 
from the leading case of Colder v. Bull, (3 Dallas, 386), decided in 1798. 

We have it on equally good authority that the colonists were not only international 
interested in and familiar with municipal law, which they would prefer to ^°^"'°° 
call the common law of England, but that they regarded as indispensable, Nations 
a knowledge of international law, which they would have called the law of 
nations, and which could with propriety be termed the common law of 
nations. In a letter dated Philadelphia, December 19, 1775, written to 
Charles W. F. Dumas, at The Hague, the venerable Dr. Franklin said: 

I am much obliged by the kind present you have made us of your edi- 
tion of Vattel.* It came to us in good season, when the circumstances of a 
rising State make it necessary frequently to consult the Law of Nations. 

* The Works of Edmund Burke. Boston, 1839, Vol. II, p. 36. 

* Documentary History of the Constitution, Vol. Ill, p. 636. Session of August 29, 1787. 
' The original edition of Vattel's " Law of Nations," in two quarto volumes, was printed 

at Neuchatel in 1758, and part of the edition bears the imprint of Leyden and of London. 
An edition in three volumes, 12 mo. appeared in the same year. The title which Vattel 
gave to his work was Le droit des gens, on principes dc la loi naturcUe, appliques a la 
conduite et aux affaires des nations et des sotn'erains. The edition for which Mr. Dumas 
was responsible appeared in Amsterdam in 1775, reproducing the original title with the 
addition of the following phrases: Nouvelle edition augmentee, revue et corrigee. Avec 
quelqws remarques de I'editeur. 



Equity 



440 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Accordingly, that copy which I kept (after depositing one in our own pub- 
lic library here, and sending the other to the College of Massachusetts 
Bay, as you directed) has been continually in the hands of the members 
of our Congress now sitting, who are much pleased with your notes and 
preface, and have entertained a high and just esteem for their author.^ 

As to the common law of nations, we thus have Dr. Franklin's authority 
for the statement that the members of the Continental Congress referred to 
and accepted Vattel's famous treatise, as the measure and standard of the 
duties of the colonies, soon to become free and independent States.^ We could, 
however, dispense with his authority, inasmuch as the common law of nations 
was then regarded as an intricate part of the common law of England, and 
adopted as a system by the adoption of the common law. For does not 
Blackstone inform us, in his Commentaries, that " the law of nations (when- 
ever any question arises which is properly the object of its jurisdiction) is 
hereby adopted in its full extent by the common law, and is held to be a 
part of the law of the land." ^ 
Law and Let US now consider the phrase " law and equity," and determine the 

sense in which those terms were understood by the framers of the Constitu- 
tion, and therefore are to be understood in the Constitution itself. 

In the first place, it will be well to cite an authority to the effect that 
terms of art are to be accepted in the sense in which they were used in that 
system of law in which the framers of the Constitution were educated, and 
from which they borrowed. Of the many cases which might be cited for 
this purpose, that of Robinson v. Campbell, (3 VVheaton, 212, 221-3), decided 
in 1818, will suffice. In speaking for a unanimous court, of which Messrs. 
Marshall and Story were members, Mr. Justice Todd said : 

By the laws of the United States, the circuit courts have cognizance of all 
suits of a civil nature, at common law and in equity, in cases which fall 
within the limits prescribed by those laws. By the 34th section of the 
judiciary act of 1789, it is provided, that the laws of the several states, 
except where the constitution, treaties or statutes of the United States 
shall otherwise require or provide, shall be regarded as rules of decision, 

1 Francis Wharton, Diplomatic Correspondence of the American Revolution, 1889, Vol. 
ii, p. 64. 

' It is interesting to note that in the debates of the Federal Convention, Luther Martin, 
delegate from Maryland, invoked Vattel's authority " in order to prove that individuals 
in a State of nature are equally free & independent," and he vouched the same great 
authority " to prove that the case is the same with States till they surrender their sov- 
ereignty." (Madison's Notes. Documentary History, Vol. iii, p. 225. Session of 
June 27th.) 

° The question of distinction between suits of a civil nature and suits coming properly 
under the law of nations was raised in In Re Baiz (135 U. S., 403), decided in 1890. 
Although the petitioner claimed to be a public minister representing a foreign country, Mr. 
Chief Justice Fuller concluded that the District Court had jurisdiction, and denied the 
writs. For opinions in analogous cases, see J. B. Scott, Judicial Settlement of Contro- 
versies Betiiven States, Vol. i, p. 388, Note. 



JXJDICIAL POWERS AND THEIR RELATION TO LAW 441 

in trials at common law, in the courts of the United States, in cases where 
they apply. The act of May, 1792, confirms the modes of proceeding then 
used in suits at common law, in the courts of the United States, and 
declares, that the modes of proceeding in suits of equity, shall be " accord- 
ing to the principles, rules and usages which belong to courts of equity, as 
contradistinguished from courts of common law," except so far as may 
have been provided for by the act to establish the judicial courts of the 
United States. 

After a brief discussion of this question, the learned Justice continued 
and concluded: 

The court, therefore, think, that to effectuate the purposes of the legis- 
lature, the remedies in the courts of the United States are to be, at common 
law or in equity, not according to the practice of state courts, but accord- 
ing to the principles of common law and equity, as distinguished and 
defined in that country from which we derive our knowledge of those 
principles. 

Accepting as we needs must, that by law, common law is meant, and by 
equity, the practice in chancery, we are obliged to probe beneath the sur- 
face, in order to ascertain the meaning to be assigned to these terms. In 
the first place, we must bear in mind that the United States, meaning thereby 
the more perfect union of the States, was a creation of the States meeting 
in conference at Philadelphia, and that the Union only possessed the powers 
expressly or impliedly granted by the delegates of the States and ratified 
by the State conventions. It was, therefore, a union without government 
and without law, except as government and law were provided by the Con- 
stitution and legislature in accordance with its terms. Each State had its 
government and had its law. The law of each State was common law 
and equity, although separate and distinct courts for the administration of 
the latter system did not exist in all the States. 

In defining law in terms of common law, the law of crimes as well as Common 
the law in civil disputes might have been adopted. It was for some Limited to 
years supposed by such men as Chief Justice Jay and Chief Justice Ells- 
worth, that the common law adopted included the law of crimes. These 
views, however, are expressly repudiated by the Supreme Court in United 
States V. Hudson (7 Cranch 32, 33), decided in 1812, in which the court 
was called upon to determine " whether the circuit courts of the United 
States can exercise a common-law jurisdiction in criminal cases." In deliv- 
ering the opinion of the court, Mr. Justice Johnson said that public opinion 
had long since decided the question, although it was now presented to the 
court for the first time. " The course of reasoning which leads to this con- 
dusion," he continued, " is simple, obvious, and admits of but little illustra- 



442 



THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



Common 
Law 

Applicable 
in Cases 
Covered by 
Special 
Legislative 
Act 



from the several states — whatever is not expressly given to the former, 
the latter expressly reserve. The judicial power of the United States is 
a constituent part of those concessions; that power is to be exercised by 
Courts organized for the purpose, and brought into existence by an effort 
of the legislative power of the Union." The question was not whether the 
courts could exercise jurisdiction in matters of crimes, but whether it had 
been conferred, as the court could not act without law. To the contention 
that such jurisdiction would be implied, Mr. Justice Johnson thus replied: 

The only ground on which it has ever been contended that this jurisdiction 
could be maintained is, that, upon the formation of any political body, an 
implied power to preserve its own existence and promote the end and object 
of its creation, necessarily results to it. But, without examining how far 
this consideration is applicable to the peculiar character of our constitu- 
tion, it may be remarked, that it is a principle by no means peculiar to the 
common law. It is coeval, probably, with the first formation of a limited 
Government ; belongs to a system of universal law, and may as well support 
the assumption of many other powers as those more peculiarly acknowl- 
edged by the common law of England. 

But if admitted as applicable to the state of things in this country, the 
consequence would not result from it which is here contended for. If it 
may communicate certain implied powers to the general Government, it 
would not follow, that the Courts of that Government are vested with juris- 
diction over any particular act done by an individual, in supposed violation 
of the peace and dignity of the sovereign power. The legislative authority 
of the Union must first make an act a crime, affix a punishment to it, and 
declare the Court that shall have jurisdiction of the offence.^ 



Such was the law as declared by the Supreme Court in 1812; and such 
is the law today, by virtue whereof such criminal jurisdiction as federal 
courts exercise has been created by Act of Congress making an act a crime, 
affixing a punishment to it, and specifying the court in which the offense 
shall be tried. 

It had previously been suggested by Mr. Justice Iredell, in Chisholm v. 
Georgia, (2 Dallas, 419, 432), decided in 1792, that criminal cases were 
not included among the controversies between States to be passed upon by 
the Supreme Court. But it is equally well settled that technical expressions, 
terms, and phrases to be found in the Acts of Congress dealing with crimes 
are to be interpreted in the sense in which they were understood and used in 
the jurisprudence of the mother country. 

In the case of Kepner v. United States, (195 U. S., 100), decided in 
1904, the Supreme Court had occasion to pass upon the clause " that no per- 
son shall be put twice in jeopardy for the same offence" contained in 

* United States v. Hudson and Goodwin, 7 Cranch, 33-4. 



JUDICIAL POWERS AND THEIR RELATION TO LAW 443 

instructions to the Pliilippine Commission, drafted by a great Secretary of 
War, statesman and lawyer alike/ by virtue whereof the dependencies of the 
United States separated on the west by an ocean from the continent, were 
secured in life, liberty and property, which the British colonies in America, 
separated from the mother country by an eastern ocean, were denied by 
lawyers who were not statesmen. 

Mr. Justice Day, after a careful reference to the authorities, said: 

In ascertaining the meaning of the phrase taken from the Bill of Rights 
[for such the Amendments to the Constitution are frequently called] it 
must be construed with reference to the common law from which it was 
taken.^ 

And in another portion of his judgment, he laid down a rule of interpreta- 
tion and of construction which may be quoted in this connection, saying: 

How can it be successfully maintained that these expressions of funda- 
mental rights, which have been the subject of frequent adjudication in the 
courts of this country, and the maintenance of which has been ever deemed 
essential to our Government, could be used by Congress in any other sense 
than that which has been placed upon them in construing the instrument 
from which they were taken? 

It is a well-settled rule of construction that language used in a statute 
which has a settled and well-known meaning, sanctioned by judicial de- 
cision, is presumed to be used in that sense by the legislative body.^ 

In support of this contention, and with more special reference to what may 
be called the civil side of the common law, other cases of the Supreme Court 
may be invoked. Thus, in Smith v. Alabama, (124 U. S., 465, 478-9), de- 
cided in 1888, Mr. Justice Matthews, speaking for a unanimous court, said: 

There is no common law of the United States, in the sense of a national 
customary law, distinct from the common law of England as adopted by 
the several States each for itself, applied as its local law, and subject to 
such alteration as may be provided by its own statutes. . . . 

There is, however, one clear exception to the statement that there is no 
national common law. The interpretation of the Constitution of the United 
States is necessarily influenced by the fact that its provisions are framed 
in the language of the English common law, and are to be read in the light 
of its history. The code of constitutional and statutory construction which, 
therefore, is gradually formed by the judgments of this court, in the applica- 
tion of the Constitution and the laws and treaties made in pursuance thereof, 
has for its basis so much of the common law as may be implied in the 
subject, and constitutes a common law resting on national authority. 

' See Secretary Root's Instructions to the Philippine Commission, Report of the Secre- 
tary of War for 1900, pp. 72, et seq., reprinted in Elihu Root, Military and Colonial Policy 
of the United States, pp. 287, et seq. 

' Kepner v. U. S., 195 U. S.. 125. 

"Ibid.. 124. 



444 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



I 



In support of these views, Mr. Justice Matthews refers to Moore v. United 
States (91 U. S., 270, 273-4), decided in 1875, in which Mr. Justice Bradley, 
speaking for a unanimous court, had said : - 

The question is, By what law is the Court of Claims to be governed in 
this respect? May it adopt its own rules of evidence? or is it to be gov- 
erned by some system of law? In our opinion, it must be governed by 
law ; and we know of no system of law by which it should be governed 
other than the common law. That is the system from which our judicial 
ideas and legal definitions are derived. The language of the Constitution 
and of many acts of Congress could not be understood without reference 
to the common law. 

In the later case of United States v. Wong Kim Ark (169 U. S., 649, 
654), decided in 1898, Mr. Justice Gray, who may properly be called the 
very learned Justice, speaking for the court, said : 

The Constitution nowhere defines the meaning of these words, either by 
way of inclusion or of exclusion, except in so far as this is done by the 
affirmative declaration that " all persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the United 
States." In this, as in other respects, it must be interpreted in the light of 
the common law, the principles and history of which were familiarly known 
to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; 
Ex parte Wilson, 114 U. S. 417, 422; Boyd v. United States, 116 U. S. 616, 
624, 625; Smith v. Alabama, 124, U. S. 465. The language of the Con- 
stitution, as has been well said, could not be understood without reference 
to the common law. 1 Kent Com. 336; Bradley, J., in Moore v. United 
States, 91 U. S. 270, 274. 

But common law in its criminal and civil sense, and equity, existed in the 
colonies forming the thirteen States. Common law and equity exist in the 
States formed since the creation of the more perfect union. It will there- 
fore be well to consider these matters very briefly, before further considering 
the nature and content of the law in the sense of the Constitution. 

In the very interesting and instructive case of Ohio v. Lajferty, (Tap- 
pan's Ohio Reports, 81) decided in 1817, Mr. Justice Tappan, speaking for 
the court of Common Pleas of the State of Ohio, had occasion to consider 
whether the common law was the rule of decision in that State. In the 
course of his opinion, he thus referred to the Act of the Congress of the 
United States, commonly called the Northwest Ordinance, passed July 13, 
1787, during the very session of the Federal Convention of that year in 
Philadelphia, which made the Constitution of the more perfect union: 

The ordinance passed by the congress of the United States, on the 13th 
of July 1787, " for the government of the territory of the United States 



JUDICIAL POWERS AND THEIR RELATION TO LAW 445 

North West of the river Ohio," is the earhest of our written laws. Pos- 
sessing the North Western Territory in absolute sovereignty, the United 
States, by that instrument, provide for the temporary government of the 
people who may settle there ; and, to use the language of that instrument, 
" for extending the fundamental principles of civil and religious liberty, 
which form the basis whereon these republics, their laws and constitutions, 
are erected ; to fix and establish those principles as the basis of all laws, 
constitutions and governments, which forever hereafter shall be formed in 
the said territory ; to provide also for the establishment of states and perma- 
nent government therein ; and for their admission to a share in the federal 
councils, on an equal footing with the original states, at as early periods as 
may be consistent with the general interest," it was ordained and declared, 
" that the inhabitants of the said territory shall alzvays be entitled to the 
benefits of the writ of habeas corpus, and of the trial by jury ; of a pro- 
portionate representation of the people in the legislature, and of judicial pro- 
ceedings according to the course of the common law " — as one of the 
articles of compact between the original states, and the people and states in 
the said territory, to remain forever unalterable unless by common consent.^ 

In a previous portion of his opinion the learned judge had referred to the 
common law as obtaining in the colonies, saying of the colonists that: 

In their charters from the crown, they were careful to have it recog- 
nized as the foundation on which they were to erect their laws and gov- 
ernments ; not more anxious was /Eneas to secure from the burning ruins 
of Troy his household Gods, than were these first settlers of America to 
secure to themselves and their children the benefits of the common law of 
England. From thence, through every stage of the colonial governments, 
the common law was in force, so far as it was found necessary or useful. 
When the revolution commenced, and independent state governments were 
formed ; in the midst of hostile collisions with the mother country, when 
the passions of men were inflamed, and a deep and general abhorrence of 
the tyranny of the British government was felt ; the sages and patriots who 
commenced that revolution, and founded those state governments, recog- 
nized in the common law a guardian of liberty and social order. The com- 
mon law of England has thus always been the common law of the colonies 
and states of North America ; not indeed in its full extent, supporting a 
monarchy, aristocracy, and hierarchy, but so far as it was applicable to our 
more free and happy habits of government.^ 

As throwing further light upon the subject reference is made to two 
cases, the first taken from an older State of the Union, explaining the sense 
in which the common law is to be understood, and the second from one of 
the younger States, defining the sense in which it is to be accepted : 

In Commonwealth v. Chapman, (13 Metcalf, 68), decided in 1848, Mr. 
Chief Justice Shaw of the Supreme Court of Massachusetts said : 

We take it to be a well settled principle, acknowledged by all civilized 
states governed by law, that by means of a political revolution, by which 

' Tappan, 83-4. 
nbid.. 83. 



446 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

the political organization is changed, the municipal laws, regulating their ' 
social relations, duties and rights, are not necessarily abrogated. They re- 
main in force, except so far as they are repealed or modified by the new ' 
sovereign authority. Indeed, the existence of this body of laws, and the 
social and personal rights dependent upon them, from 1776, when the 
declaration of independence was made, and our political revolution took 
place, to 1780, when this constitution was adopted, depend on this principle.^ 

So much for the general principle; next for the colony of English origin: 

When our ancestors [that very great and learned Chief Justice con- 
tinues] first settled this country, they came here as English subjects; they 
settled on the land as English territory, constituting part of the realm of 
England, and of course governed by its laws ; they accepted charters from 
the English government, conferring both political powers and civil privi- 
leges ; and they never ceased to acknowledge themselves English subjects, 
and never ceased to claim the rights and privileges of English subjects, till 
the revolution. It is not therefore, perhaps, so accurate to say that they 
established the laws of England here, as to say, that they were subject to the 
laws of England. When they left one portion of its territory, they were 
alike subject, on their transit and when they arrived at another portion of 
the English territory; and therefore always, till the declaration of inde- 
pendence, they were governed and protected by the laws of England, so 
far as those laws were applicable to their state and condition. Under this 
category must come all municipal laws regulating and securing the rights 
of real and personal property, of person and personal liberty, of habitation, 
of reputation and character, and of peace. The laws designed for the pro- 
tection of reputation and character, and to prevent private quarrels, affrays 
and breaches of peace, by punishing malicious libel, were as important and 
as applicable to the state and conditon of the colonists, as the law punishing 
violations of the rights of property, of person, or of habitation; that is, as 
laws for punishing larceny, assault and battery, or burglary. Being part 
of the common law of England, applicable to the state and condition of the 
colonists, they necessarily applied to all English subjects and territories, as 
well in America as in Great Britain, and so continued applicable till the 
declaration of independence.^ 

In the case of Callanan v. Judd (23 Wisconsin, 343), decided in 1868, 
Mr. Justice Paine thus spoke of law and equity, particularly of the latter : 

In order to determine the meaning of the phrase " judicial power as to 
matters of law and equity," it is only necessary to recur to the system of 
jurisprudence established in this country and derived from England, in 
which the courts had certain well-defined powers in those two classes of 
action. In actions at law they had the power of determining questions of 
law, and were required to submit questions of fact to a jury. When the 
constitution, therefore, vested in certain courts judicial power in mat- 
ters at law, this would be construed as vesting such power as the courts, 
under the English and American systems of jurisprudence, had always exer- 

' 13 Metcalf, 71. 
' Ibid.. y^A. 



JXJDICIAL POWERS AND THEIR RELATION TO LAW 44-7 

cised in that class of actions. It would not import that they were to decide 
questions of fact, because such was not the judicial power in such 
actions. . . . 

Under the old equity system, the chancellor might at any time refer 
questions of fact to a jury, but it was merely to inform his conscience. He 
might, if he saw fit, disregard their verdict, and take it upon himself to 
dispose of the questions of fact absolutely, as he could have done in the 
first instance.^ 

In considering judicial power in the sense of the Federal Convention held 
August 27, 1787, Mr. Gouverneur Morris asked whether the apparent juris- 
diction " extended to matters of fact as well as law . . . and to cases of 
Common law as well as Civil law." ^ To this enquiry Mr. Wilson, on behalf 
of the Committee of Detail, of which he had been an industrious and perhaps 
the most valuable member, replied that " The Committee he believed meant 
facts as well as law & Common as well as Civil law." And he added, " The 
jurisdiction of the federal Court of Appeals had . . . been so construed." 
The question and the answer were not unimportant, as the f ramers of the Con- 
stitution were using terms which have a definite signification, and the law 
about which Mr. Gouverneur Morris inquired and which Mr. Wilson had in 
mind was the system of law obtaining in courts of admiralty and maritime M^u^m? 
jurisdiction to which the judicial power of the United States expressly ex- {nciud'ed°^ 
tends by the second section of the third article of the Constitution. With 
this system of law the public men of that day were familiar, inasmuch as the 
civil law in its technical signification meant, as distinct from the common law 
of England, the principles of Roman law which had found their way into the 
practice and procedure of courts of admiralty. 

In view of the experience had with the Court of Federal Appeals, else- 
where considered; in view of the express language of the Constitution and 
leading decisions of the federal courts, which have given precision and 
refinement to admiralty procedure in the United States, it does not seem 
necessary to dwell upon this phase of the subject.^ 

It is however advisable to advert to the fact that the judicial power of nauinaf 
the United States wa^s held in the case of Penhallow v. Doane, (3 Dallas, 54), of" Prize 
decided in 1795, to extend to cases which had already been decided by the 
Federal Court of Appeals under the Confederation, but whose judgments 
had not been executed, and to the decision of The Betsey, (3 Dallas, 6), 
decided the year before, in which the Supreme Court held that the District 

' 23 Wisconsin, 349, 350. 

' Documentary History of the Constitution, Vol. iii, p. 627. 

"See on this subject the following three out of the many cases which might be cited: 
De Lovio v. Boit (2 Gallison, 398), 1815, by Mr. Justice Story on Circuit; The Scotia, 
(14 Wallace, 170), decided by the Supreme Court in 1871; The Lotta-wanna (21 Wallace, 
558), decided m 1874. 



448 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Court of the United States was not merely a court of admiralty jurisdiction, 
but that it was a prize court without having to be specifically created as such. 
In this latter court, as is well known, the law of nations, in so far as it 
deals with prize, is administered, which Sir William Blackstone held in his 
" Commentaries" to be a part of the common law, saying: 

the law of nations (whenever any question arises which is properly the 
object of its jurisdiction) is here adopted in its full extent by the common 
law, and is held to be a part of the law of the land.^ 

For this statement the learned commentator had the best of authority. Lord 
Chancellor Talbot had said in the case of Buvot v. Barbut, (Cases Tempore 
Talbot, 231), "That the law of nations in its full extent was part of th 
law of England." And Lord Mansfield himself, who had been of counsel ii 
the case of Buvot v. Barbut, said in the case of Triquet v. Bath (3 Burrow 
1478, 1480), decided in 1764, that "this privilege of foreign ministers an 
their domestic servants depends upon the law of nations. The act of parlia 
ment of 7. Ann, c. 12, is declaratory of it." Three years later His Lordshij 
further said in the leading case of Heath field v. Chilton, (4 Burrow, 2015 
2016), that " the privileges of public ministers and their retinue depend upor 
the law of nations, which is part of the common law of England, And the 
act of Parliament of 7 Ann c. 12 did not intend to alter, nor can alter the 
law of nations." It was natural, therefore, that the statesmen of the Revolu- 
tion should consider the law of nations as part of the common law. The] 
had by ordinance of the Congress of December 4, 1781, relating to maritime 
captures professed obedience to the law of nations " according to the genera 
usages of Europe." There was a very interesting case with which they 
must have been familiar, inasmuch as it happened in Philadelphia, then gen- 
erally looked upon as the capital of the country, and as it involved the French 
minister plenipotentiary and the King of France it must have created a stir. 
In the case of Respublica v. De Longchamps, (1 Dallas, 111), decided in 
1784, the defendant was indicted and convicted because, as stated in the in- 
dictment, on the 17th of May, " in the dwelling-house of his Excellency the 
French Minister Plenipotentiary, in the presence of Francis Barbe Marbois, 
unlawfully and insolently did threaten and menace bodily harm and violence 
to the person of the said Francis Barbe Marbois, he being Consul Ckneral of 
France to the United States, Consul for the state of Pennsylvania, Secretary 
of the French Legation, &c. resident in the house aforesaid, and under the pro- 
tection of the law of nations and this Commonwealth." 

The case was as interesting as it was novel. Mr. Chief Justice McKean, 

' Sir William Blackstone, Commentaries on the Laws of England, 1765 ed.. Vol. II, 
p. 67. 



JUDICIAL POWERS AND THEIR RELATION TO LAW 449 

before whom it was tried in Philadelphia stated that it was " a case of 
the first impression in the United States," and that " it must be determined 
on the principles of the laws of nations which form a part of the municipal 
law of Pennsylvania." ^ 

The gravity of the offense is indicated by the following sentence which 
the Chief Justice, on behalf of the court, pronounced as follows : 

That you pay a fine of one hundred French crowns to the commonwealth ; 
that you be imprisoned until the 4th day of July 1786, which will make a 
little more than two years imprisonment in the whole ; that you then give 
good security to keep the peace, and be of good behaviour to all public 
ministers, secretaries to embassies, and consuls, as well as to all the liege 
people of Pennsylvania, for the space of seven years, by entering into a 
recognizance, yourself in a thousand pounds, and two securities in five hun- 
dred pounds each : that you pay the costs of this prosecution, and remain 
committed until this sentence be complied with.^ 

It was natural for Pennsylvania to indict and to sentence De Longchamps, 
inasmuch as the law of nations was a part of the common law, and the law, 
criminal as well as civil, was in force in Pennsylvania, There might have 
been some difficulty in regarding the law of nations as a part of the law of 
the United States ; but that difficulty seems to have been obviated by section 
eight of the first article of the Constitution, authorizing in express terms 
the Congress " To define and punish Piracies and Felonies committed on 
the high Seas, and Offenses against the Law of Nations." As nations have 
trouble enough in administering their domestic laws, without seeking to 
enforce within their limits foreign laws as such, the law of nations, there- 
fore, became by this provision of the Constitution, by implication if not by 
express statement, the law of the land, This has been universally held from 
the first to the last decision of the Supreme Court, especially in the case of 
The Paquete Habana, (175 U. S. 677, 700), decided in 1900, in which Mr. 
Justice Gray, speaking for the court, said : " International law is a part of 
our law, and must be ascertained and administered by the courts of justice 
of appropriate jurisdiction, as often as questions of right depending upon 
it are duly presented for their determination." As the law of the land it is 
the law of each State of the Union, as well as of the Union, and as such, it 
is administered in all courts, in all cases involving its principles. 

The judicial power, therefore, extends to cases in law and equity, ad- 
miralty and maritime jurisdiction, and the law of nations. 

• 1 Dallas, 114. 
' Ibid., 118. 



XXII 
IMMUNITY OF STATES AND NATIONS FROM SUIT 

It is an established principle of jurisprudence in all civilized nations that the sovereign 
cannot be sued in its ovVn courts, or in any other, without its consent and permission ; but 
it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant 
in a suit by individuals, or by another State. And as this permission is altogether voluntary 
on the part of the sovereignty, it follows that it may prescribe the terms and conditions 
on which it consents to be sued, and the manner in which the suit shall be conducted, and 
may withdraw its consent whenever it may suppose that justice to the public requires it. 
(Chief Justice Taney in Beers v. State of Arkansas, 20 Howard, 527, 529, decided in 1857.) 

It is a familiar doctrine of the common law, that the sovereign cannot be sued in his 
own courts without his consent. The doctrine rests upon reasons of public policy; the 
inconvenience and danger which would follow from any different rule. It is obvious that 
the public service would be hindered, and the public safety endangered, if the supreme 
authority could be subjected to suit at the instance of every citizen, and consequently con- 
trolled in the use and disposition of the means required for the proper administration of 
the government. The exemption from direct suit is, therefore, without exception. This 
doctrine of the common law is equally applicable to the supreme authority of the nation, 
the United States. They cannot be subjected to legal proceedings at law or in equity 
without their consent; and whoever institutes such proceedings must bring his case within 
the authority of some act of Congress. Such is the language of this court in United States 
V. Clarke. 8 Peters, 444. 

The same exemption from judicial process extends to the property of the United States, 
and for the same reasons. As justly observed by the learned judge who tried this case, 
there is no distinction between suits against the government directly, and suits against 
its property. 

But although direct suits cannot be maintained against the United States, or against 
their property, yet, when the United States institute a suit, they waive their exemption 
so far as to allow a presentation by the defendant of set-offs, legal and equitable, to the 
extent of the demand made or property claimed, and when they proceed in rem, they open 
to consideration all claims and equities in regard to the property libelled. They then stand 
in such proceedings, with reference to the rights of defendants or claimants, precisely 
as private suitors, except that they are exempt from costs and from affirmative relief 
against them, beyond the demand or property in controversy. {Mr. Justice Field in The 
Siren, 7 Wallace, 152, 153-154, decided in 1868.) 

While the United States as a government may not be sued without its consent, yet 
with its consent it may be sued, and the judicial power of the United States extends to 
such a controversy. Indeed, the whole jurisdiction of the Court of Claims rests upon this 
proposition. (Mr. Justice Brewer in State of Minnesota v. Hitchcock, 185 United States 
Reports. 373, 386, decided in 1902.) 

Sec' 145. The Court of Claims shall have jurisdiction to hear and determine the follow- 
ing matters : 

First. All claims (except for pensions) founded upon the Constitution of the United 
States or any law of Congress, upon any regulation of an Executive Department, upon 
any contract, express or implied, with the Government of the United States, or for damages, 
liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the 
party would be entitled to redress against the United States either in a court of law, 
equity, or admiralty if the United States were suable: Provided, however. That nothing 
in this section shall be construed as giving to the said court jurisdiction to hear and deter- 
mine claims growing out of the late civil war, and commonly known as " war claims," or 
to hear and determine other claims which, prior to March third, eighteen hundred and 
eighty-seven, had been rejected or reported on adversely by any court, department, or com- 
mission authorized to hear and determine the same. 

450 



1 



IMMUNITY OF STATES AND NATIONS FROM SUIT 451 

Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliqui- 
dated, or other demands whatsoever on the part of the Government of the United States 
against any claimant against the Government in said court : Provided, That no suit against 
the Government of the United States, brought by any officer of the United States to 
recover fees for services alleged to have been performed for the United States, shall be 
allowed under this chapter until an account for said fees shall have been rendered and 
finally acted upon as required by law, unless the proper accounting officer of the Treasury 
fails to act finally thereon within six months after the account is received in said office. 

Third. The claim of any paymaster, quartermaster, commissary of subsistence, or 
other disbursing officer of the United States, or of his administrators or executors, for 
relief from responsibility on account of loss by capture or otherwise, while in the line 
of his duty, of Government funds, vouchers, records, or papers in his charge, and for 
which such officer was and is held responsible. (The Judicial Code of the United States, 
191 1, 36 Statutes at Large, 1136-) 



CHAPTER XXII 



IMMUNITY OF STATES AND NATIONS FROM SUIT 



In the exercise of judicial power and judicial discretion a judgment, it 
may be supposed, has been rendered in a case between actual litigants involv- 
ing a principle of law or equity. As there existed between the parties a 
difference of opinion — a contest — it is the duty of the court, in the exer- 
cise of judicial power and judicial discretion, to decide that controversy, 
settling finally and without appeal the rights of the litigants in the matter 
of the dispute, whether it be by a court of first instance, from which no 
appeal is taken or allowed, or whether it be the court of last resort upon 
appeal. The result in either case is an adjudication or culmination of juris- 
diction. In the exercise of the judicial power a judgment of the court is 
not only a final determination but one which, when determined, can be or is 
to be enforced by appropriate process of that court. For, according to the 
conception of judicial power in the United States, a judgment of a court, 
to be final, is one which can be executed under process from the court. This 
statement, however, is to be understood in the sense that the decision is final 
as to the rights of the parties in a judicial matter and is to be executed 
against individual litigants; and in this respect American practice may be 
said to accord with the practice of other nations. 
Suits There is, however, a matter in which the practice of the United States 

Against ' ' _ *^ 

^*^*^^ differs from that of other countries, in that a State may, under certain cir- 

cumstances, be sued as of right in the Supreme Court of the United States 
in controversies involving law or equity, and the rights of the litigating 
parties fixed by a judgment of the court. As this is an extension of judicial 
power beyond precedent at the time of the adoption of the Constitution of 
the United States, we are prepared to expect that, in the exercise of this new 
right, there may be limitations or qualifications of it unknown in suits be- 
tween individuals. For in this instance we are dealing with peoples in their 
political capacity. It would not necessarily follow that the process obtain- 
ing in the one would obtain in the other case or that the procedure applicable 
to the individual would be applicable to the aggregation which we call a state 
and which, although it be a person, is an artificial person. A careful examina- 
tion of the records of the Constitutional Convention of 1787 and of the pro- 
ceedings of the conventions of the different States ratifying the Constitution, 
fails to disclose any intent on the part of the framers of the Constitution, or 

452 



IMMUNITY OF STATES AND NATIONS FROM SUIT 453 

of the States ratifying it, that a judgment against a State was to be executed 
by the force of the United States. Yet it was doubtless the feeling of 
the framers and of those advising the ratification of the Constitution that, 
in extending the judicial power to controversies against States, they were 
not doing a useless thing, and that the exercise of judicial power in con- 
troversies against States would be obeyed, whatever the sanction. 

Mr. Chief Justice Taney, to cite only one illustrious example, recog- Coercion 
nized the distinction between a judgment against an individual and a judg- 
ment against a State in its political capacity. It is to be presumed that he 
had this distinction in mind when he drafted the opinion for the court in the 
case of Gordon v. United States, because four years before, in 1860, he had 
solemnly declared, on behalf of the court, in delivering its unanimous opinion 
in the case of Kentucky v. Dennison (24 Howard, 66, 109-10), that, "If the 
Governor of Ohio refuses to discharge " a duty imposed upon him by 
the Constitution and regulated in its exercise by an act of Congress, " there is 
no power delegated to the General Government, through the Judicial Depart- 
ment, or any other department, to use any coercive means to compel him." 

In view of the importance of this matter, the exact language of Chief 
Justice Taney in the case of Gordon v. United States (117 U. S., 697, 701-2) 
is quoted : 

It was to prevent an appeal to the sword and a dissolution of the compact 
that this Court, by the organic law, was made equal in origin and equal in 
title to the legislative and executive branches of the government : its powers ■ 
defined, and limited, and made strictly judicial, and placed therefore beyond 
the reach of the powers delegated to the Legislative and Executive De- 
partments. And it is upon the principle of the perfect independence of this 
Court, that in cases where the Constitution gives it original jurisdiction, the 
action of Congress has not been deemed necessary to regulate its exercise, 
or to prescribe the process to be used to bring the parties before the court, 
or to carry its judgment into execution. The jurisdiction and judicial power 
being vested in the court, it proceeded to prescribe its process and regulate 
its proceedings according to its own judgment, and Congress has never at- 
tempted to control or interfere with the action of the court in this respect. 

In so far as States are concerned, the Constitution provides that the 1,"^^'^^' 
judicial power of the United States shall extend (1) to controversies to which |^^[gg 
the United States shall be a party; (2) to controversies between two or more 
States (3) between a State and citizens of another State; (4) between citi- 
zens of different States (5) between citizens of the same State claiming lands 
under grants of different States; (6) and between a State, or the citizens 
thereof, and foreign States, citizens or subjects. It further provides that 
" in all cases .... in which a State shall be a party, the Supreme Court 
shall have original jurisdiction." 



454 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Consent 



Sued 



be The consent to be sued is a general consent on behalf of the States whicl 



does not have to be renewed on any particular occasion; and, given in th 
Constitution, it can not be withdrawn by any of the United States. Th( 
consent to be sued in a court other than the Supreme Court is a special 
consent which may be given by statute in general or for a particular purpose 
and in giving it the State may express the conditions upon which it is given 
and may revoke it according to its pleasure at any time after the beginning 
of the suit and before final judgment. 

In this latter case, however, we are not dealing with the consent given by 
the Constitution but with the consent of a State, in its original capacity, un 
aflfected by the provisions of the Constitution. In order to have a clear under- 
standing of this subject, it may be well to consider in this place whether 
State in international law, which is generally called a nation, may be sue 
without its consent, and whether the States which, by their delegates, drafted 
and, by their conventions, ratified the Constitution were to be considere 
as nations in the sense of international law, or as possessing, in the matte 
of suits, the same rights and privileges. Because, if the States under th 
Confederation stood on an equality with the nations at large; and if the) 
renounced an immunity by the Constitution which they possessed as State 
before its ratification; it follows that the right of suit is in derogation of thei; 
sovereignty, and that it is therefore to be strictly construed, as in every gran 
against a sovereign, and is to be exercised according to and within the limi 
of the grant. 

There is no need to quote authority for the statement that any and everj 
nation under international law is exempt from suit without its express con 
sent, for consent is not and can not in such cases be implied. The reason whj 
a nation should be exempt from suit has been variously and differently stated 
but the fact of immunity is not open to argument. Mr. Justice Gray, whoa 
learning often appalled while it convinced, said in the case of Briggs v. Light 
Boats (11 Allen, Mass., 157), decided in 1865, on the question of the im^ 
munity of the State from suit, that " the broader reason is that it would h 
inconsistent with the very idea of supreme executive power and would en 
danger the performance of the public duties of the sovereign, to subject hi 
to repeated suits as a matter of right at the will of any citizen, and to submi 
to the judicial tribunals the trial and disposition of his public property, his 
instruments and means of carrying on his government, in war and in peace 
and the moneys in his treasury." And in a more recent case, Mr. Justic 
Gray's successor on the Supreme Court, Mr. Justice Holmes, said, in deliver- 
ing its opinion in the case of Kwananakoa v. Polyblank (205 U. S., 349, 
353), decided in 1907: 



IMMUNITY OF STATES AND NATIONS FROM SUIT 455 

Some doubts have been expressed as to the source of. the immunity of a 
sovereign power from suit without its own permission, but the answer has 
been public property since before the days of Hobbes. (Leviathan, c. 26, 2.) 
A sovereign is exempt from suit, not because of any formal conception or 
obsolete theory, but on the logical and practical ground that there can be no 
legal right as against the authority that makes the law on which the right 
depends. "'Car on pent hien recevoir loy d'autrny, mais il est impossible par 
nature de se donner loy." Bodin, Republique, 1, c. 8. Ed. 1629, p. 132. 
Sir John Eliot, De Jure Maiestatis, c. 3. Nemo sua statuto ligatiir neces- 
sitative. Baldus., De Leg. et Const., Digma Vox. (2d ed., 1496, fol. 51 B. 
Ed. 1539, fol. 61.) 

It is thus clear that by the law of nations a sovereign State was exempt 
from suit; and it was also clear that the particular sovereign State, to wit, 
England, from which country the colonists had derived their laws and insti- 
tutions, was immune from suit except with its own consent. It remains to 
be considered if the States whose independence was proclaimed by the im- 
mortal Declaration believed themselves free from suit. In this great docu- 
ment the united colonies are declared to be " free and independent 
States." After specifying certain powers which independent States may 
exercise, it is further asserted that they have the power " to do all other 
acts and things which independent States may of right do." The Articles 
of Confederation, approved by the Congress in 1777, but not ratified by the 
last of the thirteen States, and therefore not binding upon any of them, 
until March 1, 1781, declares in its second article the States to be sovereign, 
free and independent and possessed of every power, jurisdiction and right 
which it did not grant to the United States in Congress assembled. In 
Article 9, the States forming the Confederacy allowed themselves to be sued 
by one another for specified purposes and in a prescribed manner. 

But it is evident, from the case of Simon Nathan v. the Commonwealth 
of Virginia (1 Dallas, 77, Note A), tried in the Court of Common Pleas of 
Philadelphia in the September term of 1781, that, apart from the Articles of 
Confederation and the right of suit according to the method there prescribed, 
a sovereign, free and independent State of the Confederacy was immune from 
suit. The facts of the case are thus stated by the reporter : 

A foreign attachment was issued against the Commonwealth of Virginia, 
at the suit of Simon Nathan; and a quantity of clothing, imported from 
France, belonging to that state, was attached in Philadelphia. The dele- 
gates in Congress from Virginia, conceiving this a violation of the laws 
of nations, applied to the Supreme Executive Council of Pennsylvania, by 
whom the sheriff was ordered to give up the goods. The counsel for the 
plaintiff, finding that the sheriff suppressed the writ, and made no return 
of his proceedings, obtained, September 20, 1781, a rule that the sheriff 
should return the writ, unless cause was shown. 



456 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Upon the argument, the Attorney General, on the part of the sheriff and b) 
direction of the Supreme Executive Council, " showed cause," to quote agaii 
the reporter, " and prayed that the rule might be discharged." The Attorneyi 
Greneral, it will be observed, took his stand upon the law of nations. Thus; 

norAiways He premised, that though the several states which form our federal 

an Exemption republic, had, by the confederation, ceded many of the prerogatives of sov- 

ereignty to the United States, yet these voluntary engagements did not injure 
their independence on each other ; but that each was a sovereign, " with 
every power, jurisdiction and right, not expressly given up." He then laid 
down two positions. 1. That every kind of process issued against a sov- 
ereign, is a violation of the laws of nations ; and is, in itself, null and void. 
2. That a sheriff cannot be compelled to serve or return a void writ.^ 

Leaving out the balance of the argument supporting these positions, it is to 
be observed that counsel for the plaintiff admitted the sovereignty of Vir- 
ginia, but insisted that sovereignty was not a defense against an act of in- 
justice. Thus, to quote the language of the reporter: 

The counsel for the plaintiff insisted, that though Virginia was a sov- 
ereign state, yet this ought not to exempt her property in every case from 
the laws and jurisdiction of another state. The sovereignty should never 
be made a plea in bar of justice; and that the true idea of prerogative, was 
the power of doing good, and, not, as it had sometimes been -expressed, 
" the divine right of doing ill." ^ 

Without considering the balance of the plaintiff's contention, which, as has 
been seen, recognized the sovereignty of Virginia, it is sufficient to quote the 
judgment of this case in the words of the reporter: 

The Court held the matter some days under advisement; and at their 
next meeting, the President delivered it as the judgment of the court : 

" That the rule made upon the sheriff, to return the writ issued against 
the commonwealth of Virginia, at the suit of Simon Nathan, should be 
discharged." ^ 

The meaning of this is free from doubt. The Commonwealth of Virginia, 
sovereign under the Articles of Confederation, could not be sued except in 
the manner prescribed by the Articles of Confederation; that a writ of at- 
tachment, if issued, would be dissolved; and that an order of the court 
directing the sheriff to return the writ would be discharged as inconsistent 
with the rights of a sovereign State. 

It can therefore be confidently stated, and without fear of successful con- 
tradiction, that the States represented by their delegates in the Philadelphia 

' 1 Dallas. 78. 
' Ibid.. 79. 
» Ibid. 80. 



IMMUNITY OF STATES AND NATIONS FROM SUIT 457 

Conference were sovereign, and possessed of all sovereign powers except in 
so far as they had been pleased to renounce the exercise thereof; that one 
of the powers of sovereignty inherent in a State was immunity from suit, 
except as the States had renounced the exemption in the Articles of Con- 
federation; and that they were exempt from suit under the new and more 
perfect Union drafted by their delegates in conference and ratified by the 
States, except in so far as they renounced the immunity. 

It is frequently said that, under the 9th of the Articles of Confederation, 
a State could be sued by a State only in the matter of boundary ; but this is so 
glaringly inconsistent with the express language of the articles that it is hard 
to see how anyone at all familiar with its text could fall into such an error. 
And yet Mr. Justice McLean, delivering the opinion of the Supreme Court 
in the case of Briscoe v. Bank of Kentucky (11 Peters, 257, 321), said in 
January, 1837: 

But was a state liable to be sued? .... No sovereign state is liable 



Consent 



to be sued without her consent. Under the articles of confederation, a inconsistent 



with 



state could be sued only in cases of boundary. Sovereignty 

The fact is that, upon the ratification of the Constitution and the institution 
of the government under it, the Articles of Confederation dropped out of 
sight, and they have not yet been treated by historians and publicists as they 
deserve. The material portion of the 9th Article reads : 

The United States in Congress assembled shall also be the last resort 
on appeal in all disputes and differences now subsisting or that may here- 
after arise between two or more States concerning boundary, jurisdiction, 
or any cause whatever. 

But the nature and extent of this power and its exercise need not detain 
us here. It is merely mentioned in passing to show that the States had 
consented generally to suit and had prescribed the method. 

The immunity of a State of the American Union from suit was discussed 
in Beers v. State of Arkansas (20 Howard, 527), decided in 1857. In this 
interesting and leading case it appeared that the constitution of the State of 
Arkansas authorized the General Assembly to direct " in what courts and in 
what manner suits may be commenced against the State ; " and, in pursuance 
of this provision of the constitution, an act was passed. Under the permis- 
sion of this act, suit was brought against the State which, after the suit had 
begun, passed an act requiring the plaintiff to file in open court the bonds on gove'rei^nt^ 
which the suit was brought. This the plaintiff refused to do, and the court 
dismissed the suit. On writ of error carried to the Supreme Court of the 
United States, the judgment of the court of last resort of Arkansas was 



458 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

affirmed, and, in the course of the unanimous opinion of the court announ 
ing judgment, Mr. Chief Justice Taney said : 






It is an established principle of jurisprudence in all civilized nations 
that the sovereign cannot be sued in its own courts, or in any other, without 
its consent and permission; but it may, if it thinks proper, waive this 
privilege, and permit itself to be made a defendant in a suit by individuals, 
or by another State. And as this permission is altogether voluntary on the 
part of the sovereignty, it follows that it may prescribe the terms and con- 
ditions on which it consents to be sued, and the manner in which the suit 
shall be conducted, and may withdraw its consent whenever it may suppose 
that justice to the public requires it.^ 

Considering the question whether the law of the General Assembly permitting 
suit was, when acted upon by the plaintiff, in the nature of a contract, which 
could not be repealed without injury to the plaintiff's rights, the Chief Justice 
said, speaking for the court : 

Arkansas, by its Constitution, so far waived the privilege of sovereignty 
as to authorize suits to be instituted against it in its own courts, and dele- 
gated to its General Assembly the power directing in what courts, and in 
what manner, the suit might be commenced. And if the law of 1854 had 
been passed before the suit was instituted, we do not understand that any 
objection would have been made to it. The objection is, that it was passed 
after this suit was instituted, and contained regulations with which the 
plaintiff could not conveniently comply. But the prior law was not a con- 
tract. It was an ordinary act of legislation, prescribing the conditions upon 
which the State consented to waive the privilege of sovereignty. It con- 
tained no stipulation that these regulations should not be modified after- 
wards, if, upon experience, it was found that further provisions were neces- 
sary to protect the public interest ; and no such contract can be implied 
from the law, nor can this court inquire whether the law operated hardly 
or unjustly upon the parties whose suits were then pending. That was 
a question for the consideration of the Legislature. They might have re- 
pealed the prior law altogether, and put an end to the jurisdiction of their 
courts in suits against the State, if they had thought proper to do so, or 
prescribe new conditions upon which the suits might still be allowed to 
proceed. In exercising this latter power, the State violated no contract 
with the parties ; it merely regulated the proceedings in its own courts, and 
limited the jurisdiction it had before conferred in suits when the State Con- 
sented to be a party defendant.^ 

In like manner, the State having a right to appear in court and sue natu- 
rally determines when it shall exercise that right. Otherwise, the possession 
of the right would be an empty privilege. This was briefly but adequately 
stated in the case of Clark v. Barnard (108 U. S., 436, 447-8), decided by 

' 20 Howard. 529. 
' Ibid., 525^30. 



IMMUNITY OF STATES AND NATIONS FROM SUIT 459 

the Supreme Court in 1883, in which Mr. Justice Matthews, speaking for 
a unanimous court, said : 

The immunity from suit belonging to a State, which is respected and 
protected by the Constitution within the hmits of the judicial power of the 
United States, is a personal privilege which it may waive at pleasure; so 
that in a suit, otherwise well brought, in which a State had sufficient inter- 
est to entitle it to become a party defendant, its appearance in a court of the 
United States would be a voluntary submission to its jurisdiction; while, 
of course, those courts are always open to it as a suitor in controversies 
between it and citizens of other States. In the present case the State of 
Rhode Island appeared in the cause and presented and prosecuted a claim 
to the fund in controversy, and thereby made itself a party to the litigation 
to the full extent required for its complete determination. It became an actor 
as well as defendant. . . . 

If, however, the State appears, it waives its immunity to the extent of 
its appearance, and judgment may be had against it to this extent. It may, 
for example, decide it to be in its interest to object to the jurisdiction of the 
court. If it appear for this purpose it is and can only be a party to that 
extent. For, being exempt from process, it determines for itself the extent to 
which it can safely renounce the immunity inherent in sovereignty, and that 
is withdrawn from the court which the State has not authorized it to exer- 
cise. In The Siren (7 Wallace, 152), decided in 1868, the Supreme Court 
had occasion to consider not merely the general question but a specific 
application of it. The vessel was captured in the harbor of Charleston in 
February, 1865, in the attempt to violate the blockade of that port. It was 
put in charge of a prize master and crew and ordered to Boston for adjudica- 
tion. Passing through Long Island Sound, it ran into and sank the sloop 
Harper. The court found that the collision was the fault of the Siren. 
Arriving at Boston, the Siren was libeled, condemned as lawful prize, sold, 
and the proceeds were deposited with the Assistant Treasurer of the United 
States in compliance with an act of Congress, where they remained subject 
to the order of the court. 

In this state of affairs, the owners of the Harper claimed a portion of the 
fund because of the collision, due to the fault of the Siren, and intervened 
by petition for this purpose. On the general phase of the question, Mr. Jus- 
tice Field said: 

It is a familiar doctrine of the common law, that the sovereign cannot 
be sued in his own courts without his consent. The doctrine rests upon 
reasons of public policy ; the inconvenience and danger which would follow 
from any dififerent rule. It is obvious that the public service would be 
hindered, and the public safety endangered, if the supreme authority could 
be subjected to suit at the instance of every citizen, and consequently con- 



460 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



1 



trolled in the use and disposition of the means required for the proper 
administration of the government. The exemption from direct suit is, 
therefore, without exception. This doctrine of the common law is equally 
applicable to the supreme authority of the nation, the United States. They 
cannot be subjected to legal proceedings at law or in equity without their 
consent; and whoever institutes such proceedings must bring his case within 
the authority of some act of Congress. Such is the language of this court in 
United States v. Clarke. [8 Peters, 444.] 

The same exemption from judicial process extends to the property of 
the United States, and for the same reasons. As justly observed by the 
learned judge who tried this case, there is no distinction between suits 
against the government directly, and suits against its property. '^ 

But, while this is no doubt true, the learned Justice, speaking for the court, 
recognized that it was a harsh doctrine, that it should not be extended beyond 
the principle, and that exceptions should be allowed to it in the interest of 
justice, where such exceptions were consistent with principle or sanctioned 
by practice. He therefore continued : 

But although direct suits cannot be maintained against the United States, 
or against their property, yet, when the United States institute a suit, they 
waive their exemption so far as to allow a presentation by the defendant of 
set-offs, legal and equitable, to the extent of the demand made or property 
claimed, and when they proceed in rem, they open to consideration all claims 
and equities in regard to the property libelled. They then stand in such 
proceedings, with reference to the rights of defendants or claimants, pre- 
cisely as private suitors, except that they are exempt from costs and from 
affirmative relief against them, beyond the demand or property in con- 
troversy.^ 

Referring to the particular case, Mr. Justice Field stated that in ad- 
miralty law a lien is created in favor of the injured party against the vessel 
in fault, and that the inability of the private person to enforce the lien against 
the Government, without its consent, does not invalidate the claim; but only 
prevents its allowance in an ordinary judicial proceeding. For this he refers 
to the adjudged cases of English and American courts, holding that a court 
would enforce a mortgage upon land conveyed by the Government, which the 
Government had taken subject to the mortgage of the previous owner; and 
that claims would be enforced by judicial process against the proceeds of 
property belonging to the Government, but which had been sold, under decree 
of the court, and the proceeds placed within its jurisdiction. After stating 
that, in accordance with the principles of maritime law, claims upon a vessel 
extend equally to and are satisfied out of the proceeds of the sale, the learned 
Justice thus applies this doctrine to the facts of the Siren: 

• 7 Wallace, 153-4. 
' Ibid.. 154. 



IMMUNITY OF STATES AND NATIONS FROM SUIT 461 

Assuming, therefore, that the Siren was in fault, and that by the tort she 
committed a claim was created against her, we do not perceive any just 
ground for refusing its satisfaction out of the proceeds of her sale. The 
government is the actor in the suit for her condemnation. It asks for her 
sale, and the proceeds coming into the registry of the court, come affected 
with all the claims which existed upon the vessel created subsequent to her 
capture. There is no authority, that we are aware of, which would exempt 
them under these circumstances, because of the exemption of the govern- 
ment from a direct proceeding in rem against the vessel whilst in its custody.^ 

In support of' these views, he refers to United States v. Wilder (3 Sum- 
ner, 308), decided in 1838, in which Mr. Justice Story, sitting at circuit, 
held, to quote Mr. Justice Field's summary of the case, that " goods of the 
United States were subject to contribution, equally with goods of private 
shippers, to meet the expenses incurred in saving them; " and also to the case 
of The Schooner Davis and Cargo (6 Blatchford, 138), decided in 1868 in the 
circuit court for the southern district of New York, which was later, upon 
appeal, afifirmed by the Supreme Court of the United States (10 Wallace, 
15), in 1869. In the case upon appeal it was held that, to meet salvage services 
in saving vessel and cargo, cotton belonging to the United States was liable 
to contribution as would have been the property of private persons. After 
referring to The Siren (7 Wallace, 152) and Briggs v. The Light Boats 
(11 Allen, 157), "as perhaps the two most authoritative and well considered 
cases on that subject," Mr. Justice Miller thus concluded his opinion on behalf 
of a unanimous court: 

The United States, without any violation of law by the marshal, was 
reduced to the necessity of becoming claimant and actor in the court to assert 
her claim to the cotton. Under these circumstances we think it was the 
duty of the court to enforce the lien of the libellants for the salvage before 
it restored the cotton to the custody of the officers of the government.^ 

Cotton not only troubled the American but the English courts, in which 
the United States of America appeared as plaintifT in order to recover the 
property of the Confederacy found within the jurisdiction of England. The 
Confederate States had entered into a contract with the firm of Eraser, 
Trenholm & Co., of which Prioleau was the English member, by virtue of 
which it was to sell all the cotton of the Confederacy sent to Europe, to buy 
eight steamships to be engaged in the transportation of the cotton and to 
pay out of that very necessary commodity the expenses incident to the con- 
tract and the undertaking, advancing in first instance the necessary moneys. 
Twenty thousand pounds had already been expended for this purpose. A 

V Wallace, 159. 
' 10 Wallace, 22. 



462 



THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



bovereign 
Relinquishes 
a Degree of 
Sovereignty 



particular consignment of 1365 bales of cotton had been received in Liver- 
pool after the collapse of the Confederacy, and the United States filed itsi 
bill in the court of chancery, praying to have the cotton delivered to itsj 
agents and for an injunction and receiver. 

Leaving out the very interesting points discussed in the argument anc 
decision of this case, it is sufBcient for present purposes to state that th^ 
court decreed that the United States was entitled to the cotton by the la\ 
of succession, and that it was therefore the property of the United State 
government, but that it must take it subject to the obligations entered intc 
respecting it by the de facto Confederate government. The defendant, Prio- 
leau, was therefore appointed receiver, with power to sell the cotton; but 
he was properly required to give security for its value beyond £20,000, that 
being the amount of the defendant's lien (2 H. & M., 559). 

If the matter had ended here, this case would not be cited, as we are deal- 
ing with States not as plaintiffs but as defendants, for it is universally ad- 
mitted that a sovereign can sue. We say, off-hand, that one story is good 
until another is told. The same is true in courts. The case of the United 
States was clear until Prioleau told his story, which he did by filing a cross- 
bill to obtain discovery from the United States, as a private suitor would be 
required to give under the circumstances. Therefore, in the second phase 
of this case, entitled Prioleau v. United States and Andrew Johnson (2 Law 
Rep., Eq., 659), decided in 1866, Vice-Chancellor Page Wood, later Lord 
Chancellor Hatherley, held that the United States, suing in an English court, 
subjected itself to the jurisdiction of the Court; that it stood in the same 
position as a foreign sovereign, and that it could only obtain relief subject to 
the rules of practice of the court in which it sued, according to which every 
suitor, be he a private suitor, a foreign sovereign, or a corporate body, is 
entitled to discovery upon oath concerning the matters of the suit, and to file 
a cross-bill for the purpose of obtaining such discovery. Proceedings were 
therefore stayed in the case of Prioleau v. The United States, suing in its 
corporate capacity, until an answer should be put in to the cross-bill of the 
defendant. 

In the course of his decree, Vice-Chancellor Wood intimated that a 
demurrer should have been filed to the bill of the United States in that cause, 
as no public officer was put forward as representing its interests or who 
could be called upon to give discovery upon the cross-bill. Taking advantage 
of this decision, in the case of United States v. Wagner (2 Law Rep., Chan- 
cery App. Cases, 582), decided in 1867, the defendant, Wagner, demurred 
to the bill, praying that an account be taken of the moneys, goods and ships 
which had come into the possession of the defendants and which were 
claimed by the United States as successor to the Confederacy, on the ground 



IMMUNITY OF STATES AND NATIONS FROM SUIT 463 

that it should have put forward the President of the United States or some 
other official of that Government upon whom pi'-ocess could be served by the 
defendants and who might answer to the cross-bill. The demurrer was 
allowed by Vice Chancellor Wood, but from this decree the plaintiffs ap- 
pealed. In the course of very interesting individual opinions, it was held by 
Lord Chancellor Chelmsford and the great Lord Cairns, destined shortly 
to succeed him as Lord Chancellor, that a foreign State adopting the repub- 
lican form of government can sue in the courts of Great Britain in its own 
name; that such a State is not bound to sue in the name of any officer of the 
Government or to join as co-plaintiff any official of the Government, or 
to join as co-plaintiff any other official upon whom process may be served 
and who may be called upon to give discovery upon a cross-bill; but that 
the court may stay proceedings in the original dispute until the means of 
discovery are secured in the cross suit. 

In what may be called the third and final phase of this suit, for although 
the three were separated in form they were related in fact, United States of 
America v. McRac (8 Law Rep., Eq., 69), decided in 1869, Vice Chancellor 
James thus disposed of the entire matter, for the reasons briefly stated in 
the head-note to the case : 

Upon the suppression of a rebellion, the restored legitimate government 
is entitled, as of right, to all moneys, goods, and treasure which were pub- 
lic property of the government at the time of the outbreak ; such right being 
in no way affected by the wrongful seizure of the property by the usurping 
government. 

But with respect to property which has been voluntarily contributed to, 
or acquired by, the insurrectionary government in the exercise of its usurped 
authority, and has been impressed in its hands with the character of public 
property, the legitimate government is not, on its restoration, entitled by 
title paramount, but as successor only (and to that extent recognising the 
authority) of the displaced usurping government; and in seeking to recover 
such property from an agent of the displaced government can only do so to 
the same extent and subject to the same rights and obligations as if that 
government had not been displaced, and was itself proceeding against the 
agent. 

Therefore, a bill by the United States government, after the suppres- 
sion of the rebellion, against an agent of the late Confederate government, 
for an account of his dealings in respect of the Confederate loan, which he 
was employed to raise in this country, was dismissed with costs ; in the 
absence of proof that any property to which the Plaintiffs were entitled in 
their own right, as distinguished from their right as successors of the Con- 
federate government, ever reached the hands of the Defendant, and on the 
Plaintiffs declining to have the account taken on the same footing as if taken 
between the Confederate government and the Defendant as the agent of such 
government, and to pay what on the footing of such account might be found 
due from them. 



464 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



The 

Sovereign 
Becomes 
Subordinate 
to Law 



Further 
Renunciation 
of Immunity 
from Suit 
by a 

Sovereign 
Power 



I 



From these cases, purposely chosen from a foreign jurisdiction, it ap- 
pears : that a foreign State may freely sue, but that, in doing so, it waives its 
sovereignty as such for the purposes and to the extent of the suit; that it 
can only claim rights against the defendant accorded to a private suitor; that 
it must recognize the rights of the defendant according to the laws of the 
country in which the suit is brought and that it may be made a defendant in a 
cross-bill or other action springing out of the transaction. It is interesting 
to note in this case, that the illustrious plaintiff, having failed to comply with 
the local law of which it sought the benefit, was taxed in costs as any other 
unsuccessful or unwilling litigant. 

In view of the fact that a sovereign waives its immunity by appearing as 
plaintiff in a court of justice, and of the further fact that in asking justice, 
it is obliged to do it at the instance of a defendant, the question arises 
whether a State, stepping down from the pedestal of a sovereign by engaging 
in industry or trade, may not, because thereof, be held to renounce its im- 
munity from suit and subject itself to suit as a corporation or private person 
would be subjected in like circumstances. This question has been much dis- 
cussed, and must be decided if the State as such is, in the future as in the 
past, to enter into competition with its subjects or citizens in the ordinary 
business of life. 

Thus, in Bank of United States v. Planters' Bank of Georgia (9 Wheaton, 
904, 907-8) decided as long ago as 1824, Mr. Chief Justice Marshall said: 

It is, we think, a sound principle, that when a government becomes a 
partner in any trading company, it divests itself, so far as concerns the 
transactions of that company, of its sovereign character, and takes that of 
a private citizen. Instead of communicating to the company its privileges 
and its prerogatives, it descends to a level with those with whom it associates 
itself, and takes the character which belongs to its associates, and to the 
business which is to be transacted. Thus, many States of this Union, who 
have an interest in Banks, are not suable even in their own Courts ; yet they 
never exempt the corporation from being sued. The State of Georgia, by 
giving to the Bank the capacity to sue and be sued, voluntarily strips itself 
of its sovereign character, so far as respects the transactions of the Bank, 
and waives all the privileges of that character. As a member of a corpora- 
tion, a government never exercises its sovereignty. It acts merely as a 
corporator, and exercises no other power in the management of the affairs 
of the corporation, than are expressly given by the incorporating act. 

The government of the Union held shares in the old Bank of the United 
States ; but the privileges of the government were not imparted by that 
circumstance to the Bank. The United States was not a party to suits 
brought by or against the Bank in the sense of the constitution. So with 
respect to the present Bank. Suits brought by or against it are not under- 
stood to be brought by or against the United States. The government, by 
becoming a corporator, lays down its sovereignty, so far as respects the trans- 
actions of the corporation, and exercises no power or privilege which is not 
derived from the charter. 



IMMUNITY OF STATES AND NATIONS FROM SUIT 465 

We think, then, that the Planters' Bank of Georgia is not exempted 
from being sued in the federal Courts, by the circumstance that the State 
is a corporator. 

But, in national as well as in international law, the United States is noi a state 

... . , , . ... May Sue a 

subject to suit without its consent, either at the instance of a citizen or state 
subject, of a foreign citizen or subject, or of a foreign State or nation; but, 
by the Constitution of the United States, State may sue State, and has often 
done 80.^ As originally drafted and as construed by the Supreme Court, a 
citizen of one of the States could sue another State of the Union; but its 
exercise in the case of Chisholm v. Georgia (2 Dallas, 415), decided in 1793, 
led to the passage of the 11th Amendment, to the effect that the judicial 
power of the United States should not extend to such a suit. The United 
States may sue a State of the American Union. The United States are, for 
purposes of suit, regarded as a State within the meaning of the Constitution, 
as solemnly adjudged in United States v. Texas (143 U. S., 621), decided in 
1892; but it is equally well settled that the Government of the United States 
is not made by the Constitution suable, without express consent, by State or 
citizen. However, by various acts of Congress, the Federal Government has 
consented to be sued, in a limited category of cases, in the Court of Claims, 
created in 1855 for this purpose. These acts are in terms broad enough t0 
include States as well as private persons. As amended in 1912, they thus 
define and state the jurisdiction of the present Court of Claims: 

Sec. 145. The Court of Claims shall have jurisdiction to hear and 
determine the following matters : 

First. All claims (except for pensions) founded upon the Constitu- 
tion of the United States or any laws of Congress, upon any regulation of 
an Executive Department, upon any contract, express or implied, with the 
Government of the United States, or for damages, liquidated or unliquidated, 
in cases not sounding in tort, in respect of which claims the party would be 
entitled to redress against the United States either in a court of law, equity, 
or admiralty if the United States were suable. . . . 

Second. All set-offs, counterclaims, claims for damages, whether liqui- 
dated or unliquidated, or other demands whatsoever on the part of the Gov- 
ernment of the United States against any claimant against the Government 
in said court. ^ 

' For collection of cases, see J. B. Scott, Judicial Settlement of Controversies Between 
States, 2 vols. 

'36 Statutes at Large, 1136-7. 



XXIII 
A MORE PERFECT SOCIETY OF NATIONS 



i 



It is a favourite maxim of mine that history, while it should be scientific in its method, 
should pursue a practical object. That is, it should not merely gratify the reader's curiosity 
about the past, but modify his view of the present and his forecast of the future. {Sir 
John R. Seeley, Th-e Expansion of England, American edition, 1883, p. i.) 

To be right, to set for the world a standard of true liberty and true justice: that is the 
great mission of democracy ! . . . 

... It is for us whose lives are cast in such lines that we can see and feel the 
difference between that high function and the ordinary things of life, to teach our friends 
and neighbors the secret of the great judgment of our free democracy, that they may 
reverence it and preserve it always. (Elihu Root, The Spirit Which Makes a Nation Live, 
Addresses on Govermn-ent and Citizenship, igi6, pp. 500-502.) 

We wish for no victories but those of peace; for no territory except our own; for no 
sovereignty except sovereignty over ourselves. We deem the independence and equal 
rights of the smallest and weakest member of the family of nations entitled to as much 
respect as those of the greatest empire ; and we deem the observance of that respect the 
chief guaranty of the weak against the oppression of the strong. We neither claim nor 
desire any rights or privileges or powers that we do not freely concede to every American 
republic. We wish to increase our prosperity, to expand our trade, to grow in wealth, 
in wisdom, and in spirit; but our conception of the true way to accomplish this is not to 
pull down others and profit by their ruin, but to help all friends to a common prosperity' 
and a common growth, that we may all become greater and stronger together. (Elihu 
Root, Address to the Third Conference of the American Republics at Rio de Janeiro, 
July 31, 1906, Latin America and the United States, 1917, p. 10.) 

There are no international controversies so serious that they cannot be settled peaceably 
if both parties really desire peaceable settlement, while there are few causes of dispute so 
trifling that they cannot be made the occasion of war if either party really desires war. 
The matters in dispute between nations are nothing; the spirit which deals with them is 
everything. {Elihu Root, Address at the Laying of the Corner Stone of the Building for 
the Pan American Union, Washington, May u, 1908, in Latin America and the United 
Stat-es, 1917, pp. 230-231.) 

It is the proper end of government to reduce this wretched waste to the smallest possible 
amount, by taking such measures as shall cause the energies now spent by mankind in 
injuring one another, or in protecting themselves against injury, to be turned to the 
legitimate employment of the human faculties, that of compelling the powers of nature to 
be more and more subservient to physical and moral good. {John Stuart Mill, Principles 
of Political Economy, 1848, Vol. 2, p. 560.) 



466 



CHAPTER XXIII 



A MORE PERFECT SOCIETY OF NATIONS 



The Society of Nations is approximately composed of fifty States claim- The 
ing to be sovereign, free and independent. The more perfect Union of the Problem 
United States is composed of forty-eight States. The official delegates of 
twelve of the then thirteen sovereign, free and independent American States 
who met in Federal Convention in the city of Philadelphia in 1787, were 
faced by the problems which confront every international conference in which 
an attempt is made to bring and to keep the nations in closer relations. The 
greatest of these problems is that of renouncing in the common interest the 
exercise of certain sovereign rights, while retaining unimpaired the exercise 
of all sovereign rights not so renounced. The line of demarkation between 
what may be safely renounced in the interest of all and what it is essential 
to retain in the interest of each is always difficult to draw. That the prob- 
lem is in itself not insuperable is shown by the success of those delegates of 
twelve of the thirteen American States, for, as Benjamin Franklin, a dele- 
gate from the State of Pennsylvania, said, " we had many interests to 
reconcile." The delegates to that memorable assembly established in fact and 
in form, a union for legislative purposes, a union for administrative pur- 
poses, and a union for judicial purposes, which, taken together and acting 
in cooperation as they must, since each depends upon the other, form a more 
perfect Union than that of the Society of Nations. 

The delegates in Federal Convention did not merge the States in a union, 
but formed a union of the States. They vested the legislative branch 
with eighteen powers of legislation only, so that the Union is from this 
standpoint one of enumerated powers merely. The executive branch of the 
Union possesses no powers save those specified in the instrument of its crea- 
tion, and any attempt on the part of the legislative or the executive branch to 
exercise powers in excess of the grant contained in the Constitution is de- 
clared null and void and of no eflfect by the judicial branch of the Union. An 
attempt on the part of the Union to exercise a power in excess of the grant 
is, in an appropriate and specific case presented for its decision, declared to 
be null, void and of no effect by the Supreme Court of the United States. 
This is accomplished without the use of force against the Union on the part 

467 



A 

Po 

Solution 



468 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

of a State or combination of States. Only the individual is coerced. Th^ 
statute may remain unrepealed, for it has ceased to possess legal validity. 

The Society of Nations may not be willing, and indeed even wit 
good will may not be able, to go so far now or at any time as have 
States forming the American Union. But however many steps they may taki 
or however few toward the closer Union, the experience of the framers ol 
the Constitution who traversed the entire path should be as a lamp to their 
feet. 

Yet we must not imagine that the Society of Nations is a mere phrase. It 
is a body politic if it care to consider itself as such, for which statement we 
have the authority of Respublica v. Sweers (1 Dallas, 41), decided by the 
Supreme Court of Pennsylvania in 1779, at a time when the Articles of 
Confederation were still unratified, the court saying that " from the moment 
of their association the United States necessarily became a body corporate; 
for, there was no superior from whom that character could otherwise be de- 
rived." On two occasions, in 1899 twenty-six nations and in 1907 forty-four 
nations solemnly recognized in the Pacific Settlement Convention of The 
Hague " the solidarity which unites the members of the society of civilized 
nations," thus bringing the Society of Nations within the rule of law defining 
the association of the American States. They can, if they will, frame the law 
for the Society through delegates of their own choice meeting in conference 
at stated intervals and submitting the draft of their labors for ratification to 
each of the States participating in the conference, thus making of themselves 
a legislature ad referendum. In like manner delegates of the Nations may in 
conference assembled establish a court of the Nations, for which they have a 
precedent in the Supreme Court of the American Union, which can declare 
and apply the law of Nations now existing or as made by their delegates in 
conference and ratified by each of the Nations. Delegates of twenty-six 
Nations in 1899, delegates of forty-four Nations in 1907 in the Pacific Set- 
tlement Convention declared it to be " expedient to record in an international 
agreement the principles of equity and right on which are based the security 
of States and the welfare of peoples." It can be added that an interna- 
tional court of justice " accessible to all in the midst of the independent 
Powers " would not only extend " the empire of law " and strengthen " the 
appreciation of international justice," but to quote still further from the 
Pacific Settlement Convention of 1899 and 1907, that it would also make for 
" the maintenance of the general peace." 

Should the Powers desire, they may take a third and further step by 
vesting their diplomatic representatives residing in any city, such as The 
Hague, under the presidency of the resident minister of foreign affairs, 
with such powers of supervision and of initiative as to them shall seem 



A MORE PERFECT SOCIETY OF NATIONS 469 

meet and proper. The delegates of the Nations may, if they are willing, 
enter into a more perfect Union, and in conference assembled render 
the Society of Nations, as delegates in convention rendered the Articles of 
Confederation, " adequate to the exigencies of government and the preserva- 
tion of the Union." 



APPENDIX 



A. PLANS OF UNION FOR THE COLONIES AND THE STATES 
OF NORTH AMERICA.^ 

I. THE NEW ENGLAND CONFEDERATION OF 1643 ^ 
Articles of Confederation (ratified September 7, 1643). 

ARTICLES 

of 

Confederation betwixt the Plantations under the Government of the 

Massachusets, the Plantations under the Government of Plimouth, 

the Plantations under the Government of Connectecut, and the 

Government of New Haven, with the Plantations in 

Combination therewith. 

Whereas we all came into these parts of America, with one and the same end 
and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, and to 
enjoy the liberties of the Gospel, in purity with peace ; and whereas in our settling 
(by a wise providence of God) we are further dispersed upon the Sea-Coasts, 
and Rivers, then was at first intended, so that we cannot (according to our desire) 
with convenience communicate in one Government, and Jurisdiction ; and whereas 
we live encompassed with people of severall Nations, and strange languages, 
which hereafter may prove injurious to us, and our posterity: And forasmuch 
as the Natives have formerly committed sundry insolencies and outrages upon 
severall Plantations of the English, and have of late combined themselves against 
us. And seeing by reason of the sad distractions in England, which they have 
heard of, and by which they know we are hindred both from that humble way of 
seeking advice, and reaping those comfortable fruits of protection which, at other 
times, we might well expect; we therefore doe conceive it our bounden duty, with- 
out delay, to enter into a present Consotiation amongst our selves, for mutuall 
help and strength in all our future concernments, that, as in Nation, and Reli- 
gion, so, in other respects, we be, and continue. One, according to the tenour and 
true meaning of the ensuing Articles. 

1 For the texts of the various plans and scholarly comment upon them, see Frederick D. 
Stone, Plans for the Union of the British Colonies of North America, 1643-1776, in Carson's 
looth Anniversary of the Constitution of the United States, 1889, Vol. ii, pp. 439-503. For 
a summary of early plans and suggestions of Colonial Union see also Chapter IV in Richard 
Frothmgham's Rise of the Republic of the United States. 1872, pp. 109-120. 

2 Reprinted from the Records of the Colony or Jurisdiction of New Haven, C. J. Hoadly, 
ed., 1858, pp. 562-6. 

4/1 



472 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

I. Wherefore it is fully Agreed and Concluded by and between the parties, 
Jurisdictions above named, and they doe joyntly and severally by these presents 
agree and conclude, That they all be, and henceforth be called by the name 
■The United Colonies of New-England. 

II. The said United Colonies for themselves, and their posterities doe joyntly 
and severally hereby enter into a firm and perpetuall league of friendship and 
amity, for offence and defence, mutuall advice and succour, upon all just occa- 
sions, both for preserving and propagating the truth, and liberties of the Gospel, 
and for their own mutuall safety, and wellfare. 

III. It is further agreed. That the Plantations which at present are, or here- 
after shall be settled within the limits of the Massachiisets, shall be forever under 
the Government of the Massachiisets. And shall have peculiar Jurisdiction 
amongst themselves, as an intire body ; and that Plimouth, Connecticut, and New- 
Haven, shall each of them, in all respects, have the like peculiar Jurisdiction, and 
Government within their limits. And in reference to the Plantations which al- 
ready are setled, or shall hereafter be erected and shall settle within any of their 
limits respectively, provided that no other Jurisdiction shall hereafter be taken in, 
as a distinct head, or Member of this Confederation, nor shall any other either 
Plantation, or Jurisdiction in present being, and not already in combination, or 
under the Jurisdiction of any of these Confederates, be received by any of them, 
nor shall any two of these Confederates, joyne in one Jurisdiction, without consent 
of the rest, which consent to be Interpreted, as in the sixt ensuing Article is 
expressed. 

IV. It is also by these Confederates agreed, That the charge of all just Wars, 
whether offensive, or defensive, upon what part or Member of this Confederation 
soever they fall, shall both in men, provisions, and all other disbursements, 
be born by all the parts of this Confederation, in different proportions, ac- 
cording to their different abilities, in manner following, namely. That the Com- 
missioners for each Jurisdiction, from time to time, as there shall be occasion, 
bring a true account and number of all the Males in each Plantation, or any way 
belonging to, or under their severall Jurisdictions, of what quality, or condition 
soever they be, from sixteen years old, to threescore, being inhabitants there. 
And that according to the different numbers, which from time to time shall be 
found in each Jurisdiction, upon a true, and just account, the service of men, and 
all charges of the war, be bom by the poll: Each Jurisdiction, or Plantation, 
being left to their own just course, and custome, of rating themselves, and people, 
according to their different estates, with due respect to their qualities and exemp- 
tions among themselves, though the Confederation take no notice of any such 
priviledge. And that, according to the different charge of each Jurisdiction, and 
Plantation, the whole advantage of the War (if it please God so to blesse their 
endeavours) whether it be in Lands, Goods, or persons, shall be proportionably 
divided among the said Confederates. 

V. It is further agreed, That if any of these Jurisdictions, or any Plantation 
tinder, or in Combination with them, be invaded by any enemy whomsoever, upon 
notice, and request of any three Magistrates of that Jurisdiction so invaded. 



APPENDIX 473 

The rest of the Confederates, without any further meeting or expostulation, shall 
forthwith send ayde to the Confederate in danger, but in different proportion, 
namely the Massachusefs one hundred men sufficiently armed, and provided for 
such a service, and journey. And each of the rest five and forty men, so armed 
and provided, or any lesse number, if lesse be required, according to this pro- 
portion. But if such a Confederate may be supplyed by their next Confederate, 
not exceeding the number hereby agreed, they may crave help there, and seek no 
further for the present. The charge to be born, as in this Article is expressed. 
And at their return to be victualled, and supplied with powder and shot (if there 
be need) for their journey by that Jurisdiction which imployed, or sent for them. 
But none of the Jurisdictions to exceed these numbers, till by a meeting of the 
Commissioners for this Confederation, a greater ayde appear necessary. And 
this proportion to continue, till upon knowledge of the numbers in each Jurisdic- 
tion, which shall be brought to the next meeting, some other proportion be ordered. 
But in any such case of sending men for present ayde, whether before or after 
such order or alteration, it is agreed, That at the meeting of the Commissioners 
for this Confederation, the cause of such war or invasion, be duly considered, 
and if it appear, that the fault lay in the party so invaded, that then, that Juris- 
diction, or Plantation, make just satisfaction, both to the invaders, whom they 
have injuried, and bear all the charges of the war themselves, without requiring 
any allowance from the rest of the Confederates toward the same. 

And further, if any Jurisdiction see any danger of an invasion approaching, 
and there be time for a meeting. That in such case, three Magistrates of that 
Jurisdiction may summon a meeting, at such convenient place, as themselves shall 
think meet, to consider, and provide against the threatned danger. Provided, 
when they are met, they may remove to what place they please, onely while any 
of these four Confederates, have but three Magistrates in their Jurisdiction, a 
request or summons, from any two of them, shall be accounted of equall force, 
with the three mentioned in both the clauses of this Article, till there be an in- 
crease of Magistrates there. 

VI. It is also agreed. That for the managing and concluding of all affaires 
proper to, and concerning the whole Confederation, two Commissioners shall be 
chosen by, and out of the foure Jurisdictions, namely two for the Massachusets, 
two for Plimouth two for Connecticut, and two for Nezv-haven, being all in 
Church-fellowship with us, which shall bring full power from their severall 
generall Courts respectively, to hear, examine, weigh, and determine all affaires 
of war, or peace, leagues, aydes, charges, and numbers of men for war, division 
of spoyles, or whatsoever is gotten by conquest, receiving of more confederates, 
or Plantations into Combination with any of these Confederates, and all things 
of like nature, which are the proper concomitants, or consequences of such a 
Confederation, for amity, offence, and defence, not intermedling with the Gov- 
ernment of any of the Jurisdictions, which by the third Article, is preserved 
intirely to themselves. But if these eight Commissioners when they meet, shall not 
all agree, yet it is concluded. That any six of the eight agreeing, shall have power 



474 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



I 



to settle, and determine the businesse in question. But if six doe not agree, that 
then such Propositions, with their Reasons, so far as they have been debated, be 
sent, and referred to the f oure Generall Courts, vis. The Massachiisets, Plymouth, 
Connectecut, and New-haven. And if at all the said Generall Courts, the 
businesse so referred, be concluded, then to be prosecuted by the Confederates, 
and all their Members. It is further agreed. That these eight Commissioners 
shall meet once every year, besides extraordinary meetings, according to the fifth 
Article to consider, treat, and conclude of all aflfaires belonging to this Confeder- 
ation, which meeting shall ever be the first Thursday in September. And that 
the next meeting after the date of these presents, which shall be accounted the 
second meeting, shall be at Boston in the Massachiisets, the third at Hartford, the 
fourth at Nezv-haven, the fifth at Plimouth, the sixth and seventh at Boston; and 
then Hartford, Nezv-haven, and Plymouth, and so in course successively. If in 
the mean time, some middle place be not found out, and agreed on, which may be 
comodious for all the Jurisdictions. 

VII. It is further agreed. That at each meeting of these eight Commis- 
sioners, whether ordinary or extraordinary ; they all, or any six of them agreeing 
as before, may choose their President out of themselves, whose Office and work 
shall be, to take care, and direct for Order, and a comely carrying on of all pro- 
ceedings in the present meeting. But he shall be invested with no such power or 
respect, as by which, he shall hinder the propounding or progresse of any 
businesse, or any way cast the scales, otherwise then in the precedent Article is 
agreed. 

VIII. It is also agreed, That the Commissioners for this Confederation here- 
after at their meetings, whether ordinary or extraordinary, as they may have 
Commission or opportunity, doe endeavour to frame and establish Agreements 
and Orders in generall cases of a civil nature, wherein all the Plantations are 
interested, for preserving peace amongst themselves, and preventing (as much as 
may be) all occasions of war, or differences with others, as about the free and 
speedy passage of Justice in each Jurisdiction, to all the Confederates equally, as 
to their own, receiving those that remove from one Plantation to another, without 
due Certificates, how all the Jurisdictions may carry it towards the Indians, that 
they neither grow insolent, nor be injuried without due satisfaction, least War 
break in upon the Confederates, through such miscarriages. It is also agreed, 
That if any Servant run away from his Master, into any other of these Con- 
federated Jurisdictions, That in such case, upon the Certificate of one Magistrate 
in the Jurisdiction, out of which the said Servant fled, or upon other due proof, 
the said Servant shall be delivered either to his Master, or any other that pursues, 
and brings such Certificate, or proof. And that upon the escape of any Prisoner 
whatsoever, or fugitive, for any Criminall Cause, whether breaking Prison, or 
getting from the Officer or otherwise escaping, upon the Certificate of two Magis- 
trates of the Jurisdiction out of which the escape is made, that he was a prisoner 
or such an offender, at the time of the escape. The Magistrates, or some of them, 
of that Jurisdiction where for the present the said prisoner or fugitive abideth, 



APPENDIX 475 

shall forthwith grant such a Warrant, as the case will bear, for the apprehending 
of any such person, and the delivery of him into the hand of the Officer, or other 
person who pursueth him. And if help be required for the safe returning of any 
such offender, it shall be granted unto him that craves the same, he paying the 
charges thereof. 

IX. And for that the justest Wars may be of dangerous consequence, espe- 
cially to the smaller Plantations in these United Colonies, it is agreed. That 
neither the Massachusets, Plymottth, Connecticut, nor New-Haven, nor any of the 
Members of any of them, shall at any time hereafter begin undertake or engage 
themselves, or this Confederation, or any part thereof in any War whatsoever 
(sudden exigents with the necessary consequences thereof excepted, which are 
also to be moderated, as much as the case will permit) without the consent and 
agreement of the forenamed eight Commissioners, or at least six of them, as in 
the sixt Article is provided. And that no charge be required of any of the Con- 
federates in case of a defensive War, till the said Commissioners have met, and 
approved the Justice of the War, and have agreed upon the sum of money to be 
levied ; which sum is then to be paid by the severall Confederates, in proportion, 
according to the fourth Article. 

X. That in extraordinary occasions, when meetings are summoned by three 
Magistrates of any Jurisdiction, or two as in the fifth Article, if any of the 
Commissioners come not, due warning being given, or sent, it is agreed. That 
foure of the Commissioners shall have power to direct a War which cannot be 
delayed, and to send for due proportions of men, out of each Jurisdiction, as well 
as six might doe, if all met, but not lesse then six shall determine the justice of 
the War, or allow the demands, or Bills of charges, or cause any levies to be 
made for the same. 

XL It is further agreed, That if any of the Confederates shall hereafter break 
any of these present Articles, or be any other way injurious to any one of the 
other Jurisdictions such breach of Agreement, or injury shalbe duly considered, 
and ordered by the Commissioners for the other Jurisdictions, that both peace, 
and this present Confederation, may be intirely preserved without violation. 

Lastly, this perpetuall Confederation, and the severall Articles and Agree- 
ments thereof, being read and seriously considered, both by the Generall Court 
for the Massachusets, and by the Commissioners for Plymouth, Connecticut, and 
New-Haven, were presently and fully allowed and confirmed by three of the 
fore-named Confederates, namely the Massachusets, Connecticut, and Nezv- 
Haven; in testimony whereof, the Generall Court of the Massachusets by their 
Secretary, and the Commissioners for Connecticut and Neiv-Haven subscribed 
them the 19 day of the third month, commonly called May, Anno Domini, 1643. 

Only the Commissioners from Plymouth, having brought no Commission to 
conclude, desired respite to advise with their Generall Court, which was granted, 
and at the second meeting of the Commissioners for the Confederation, held at 
Boston in September following, the Commissioners for the Jurisdiction of Plym- 
outh, delivered in an Order of their Generall Court, dated the 29 of August, 1643, 



476 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



I 



by which it appeared that these Articles of Confederation were read, approved 
and confirmed by the said Court, and all their Townships, and their Commis- 
sioners authorized to ratifie them by their subscriptions, which they accordingly 
did, the 7 day of September, 1643. 



II. WILLIAM PENN'S PLAN FOR A UNION OF THE COLONIES, 
FEBRUARY 8, 1698.^ 

[Plantation General Entries, XXXIV A. 102] 

A Briefe and Plaine Scheam how the English Colonies in the North parts of 
America Viz : Boston Connecticut Road Island New York New Jerseys, 
Pensilvania, INIaryland, Virginia and Carolina may be made more usefuU to 
the Crowne, and one anothers peace and safty with an universall concurrence. 

P'. That the sever all Colonies before mentioned do meet once a year, and 
oftener if need be, during the war, and at least once in two years in times of 
peace, by their stated and appointed Deputies, to debate and resolve of such 
measures as are most adviseable for their better understanding, and the publick 
tranquility and safety 

2. That in order to it two persons well qualified for sence sobriety and sub- 
stance be appointed by each Province, as their Representatives or Deputies, which 
in the whole make the Congress to consist of twenty persons. 

3. That the Kings Commissioner for that purpose specially appointed shall 
have the Chaire and preside in the said Congresse. 

4. That they shall meet as near as conveniently may be to the most centrall 
Colony for ease of the Deputies. 

5. Since that may in all probability, be New York both because it is near the 
Center of the Colonies and for that it is a Frontier and in the Kings nomination, 
the Gov' of that Colony may therefore also be the Kings High Commissioner 
during the Session after the manner of Scotland. 

6. That their business shall be to hear and adjust all matters of Complaint or 
difference between Province and Province. As P' where persons quit their own 
Province and goe to another, that they may avoid their just debts tho they be 
able to pay them, 2^ where offenders fly Justice, or Justice cannot well be had 
upon such offenders in the Provinces that entertaine them, 3*^'^ to prevent or cure 
injuries in point of commerce, 4"", to consider of ways and means to support the 
union and safety of these Provinces against the publick enemies In which Con- 
gresse the Quotas of men and charges will be much easier, and more equally sett, 
then it is possible for any establishment made here to do ; for the Provinces, 
knowing their own condition and one anothers, can debate that matter with more 
freedome and satisfaction and better adjust and ballance their affairs in all 
respects for their common safty. 

1 Reprinted from Documents Relative to the Colonial History of the State of New York, 
J. R. Brodhead, 1851 ed., Vol. IV, pp. 296-7. 



APPENDIX 477 

7"' That in times of war the Kings High Commissioner shall be generall or 
Chief Commander of the severall Quotas upon service against the Common enemy 
as he shall be advised, for the good and benefit of the w^hole. 



III. BENJAMIN FRANKLIN'S PLAN FOR A UNION OF THE SEV- 
ERAL COLONIES, ADOPTED AT ALBANY, JULY 10, 1754.^ 

PLAN OF UNION 

Adopted by the Convention at Albany; With the Reasons and Motives 
FOR Each Article of the Plan.^ 

// is proposed that humble application be made for an act of Parliament of 
Great Britain, by virtue of which one general government may be formed in 
America, including all the said colonies, within and under which government each 
colony may retain its present constitution, except in the particulars wherein a 
change may be directed by the said act, as hereafter follozvs. 

President-General and Grand Council 

That the said general government be administered by a President-General, to 
be appointed and supported by the crown ; and a Grand Council, to be chosen by 
the representatives of the people of the several colonies met in their respective 
Assemblies. 

It was thought that it would be best the president-general should be supported 
as well as appointed by the crozvn, that so all disputes between him and the grand 
council concerning his salary might be prevented; as such disputes have been fre- 
quently of mischievous consequence in particular colonies, especially in time of 
public danger. The quit-rents of crozvn lands in America might in a short time 
be sufficient for this purpose. This choice of members for the grand council is 
placed in the house of representatives of each government, in order to give the 
people a share in this new general government, as the crown has its share by the 
appointment of the president-general. 

1 Reprinted, with the permission of The Macmillan Company of New York, from Albert 
Henry Smyth, The Writings of Benjamin Franklin, 1907, Vol. iii, pp. 207-227. See also 
Documents Relative to the Colonial History of Neii.' York, Vol. vi, pp. 889-891. 

2 Dr. Franklin accompanied the text of the Articles with comments here reproduced in 
Italics. The several Articles, as originally adopted are printed in Roman type. 

It is to be observed, that the union was to e.xtend to the colonies of New Hampshire, 
Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, 
Virginia, North Carolina, and South Carolina, (being all the British Colonies at that time 
in North America, except Georgia and Nova Scotia,) " for their mutual defence and secu- 
rity, and for extending the British settlements in North America." Another plan was pro- 
posed in the Convention, which included only New Hampshire, Massachusetts, Connecticut, 
Rhode Island, New York, and New Jersey. This was printed in the volume of the COLLEC- 
TIONS of the Massachusetts Historical Society for 1800. It is a rough draft of the above 
Plan, with some unimportant variations. It would seem, by the Hints communicated to Mr. 
Alexander, that Franklin himself did not at first contemplate anything more that a union 
of the northern colonies. (Mr. Smyth's note.) 



478 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

But it being proposed by the gentlemen of the council of New York, and some 
other counsellors among the commissioners, to alter the plan in this particular, and 
to give the governors and council of the several provinces a share in the choice of 
the grand council, or at least a power of approving and confirming, or of dis- 
allowing, the choice made by the house of representatives, it zvas said, 

" That the government or constitution, proposed to be formed by the plan, 
consists of two branches; a president-general appointed by the crown, and a 
council chosen by the people, or by the people's representatives, which is the same 
thing. 

" That by a subsequent article, the council chosen by the people can effect 
nothing zvithout the consent of the president-general appointed by the crown; the 
crown possesses therefore full one half of the power of this constitution. 

" That in the British constitution, the crown is supposed to possess but one 
third, the lords having their share. 

" That this constitution seemed rather more favourable for the crown. 

" That it is essential to English liberty, that the subject should not be taxed but 
by his ovm consent, or the consent of his elected representatives. 

" That taxes to be laid and levied by this proposed constitution will be pro- 
posed and agreed to by the representatives of the people, if the plan in this par- 
ticular be preserved ; 

" But if the proposed alteration should take place, it seemed as if matters may 
be so managed, as that the crown shall finally have the appointment, not only of 
the president-general, but of a majority of the grand council; for seven out of 
eleven governors and councils are appointed by the crown; 

"And so the people in all the colonies would in effect be taxed by their 
governors. 

" It was therefore apprehended, that such alterations of the plan would give 
great dissatisfaction, and that the colonies could not be easy under such a power 
in governors, and such an infringement of what they take to be English liberty. 

"Besides, the giving a share in the choice of the grand council zvould not be 
equal with respect to all the colonies, as their cotistitutions differ. In some, both 
governor and council are appointed by the crown. In others, they are both ap- 
pointed by the proprietors. In some, the people' have a share in the choice of the 
council; in others, both government and council are wholly chosen by the people. 
But the house of representatives is everyzvhere chosen by the people; and, there- 
fore, placing the right of choosing the grand council in the representativs is equal 
with respect to all. 

" That the grand council is intended to represent all the several houses of rep- 
resentatives of the colonies, as a house of representatives doth the several towns 
or counties of a colony. Could all the people of a colony be consulted and unite 
in public measures, a house of representatives would be needless, and could all 
the Assemblies conveniently consult and unite in general measures, the grand 
council zvould be unnecessary. 

" That a house of commons or the house of representatives, and the grand 



APPENDIX 479 

council, are thus alike in their nature and intention. And, as it would seem im^ 
proper that the King or House of Lords should have a power of disallowing or 
appointing members of the House of Commons; so likewise, that a governor and 
council appointed by the crown should have a power of disallowing or appointing 
members of the grand council, who, in this constitution, are to be the representor 
tives of the people. 

" If the governors and councils therefore were to have a share in the choice 
of any that are to conduct this general government, it should seem more proper 
that they choose the president-general. But, this being an ofUce of great trust 
and importance to the nation, it was thought better to be filled by the immediate 
appointment of the crown. 

" The power proposed to be given by the plan to the grand council is only a 
concentration of the powers of the several Assemblies in certain points for the 
general welfare; as the power of the president-general is, of the powers of the 
several governors in the same points. 

"And as the choice therefore of the grand council, by the representatives of 
the people, neither gives the people any new powers, nor diminishes the poiver of 
the crown, it was thought and hoped the crown would not disapprove of it." 

Upon the whole, the commissioners were of opinion, that the choice was most 
properly placed in the representatives of the people. 

Election of Members 

That within m,onths after the passing such act, the house of representor 

tives, that happen to be sitting within that time, or that shall be especially for that 
purpose convened, may and shall choose members for the grand council, in the 
following proportion, that is to say, 

Massachusett's Bay, , 7 

New Hampshire, 2 

Connecticut, 5 

Rhode Island, 2 

New York, 4 

New Jersey, , 3 

Pennsylvania, 6 

Maryland, 4 

Virginia, 7 

North Carolina, 4 

South Carolina, 4 

48 

It was thought, that if the least colony was allowed two, and the others in pro- 
portion, the number would be very great, and the expense heavy; and that less 
than two would not be convenient, as, a single person being by any accident pre- 
vented appearing at the meeting, the colony he ought to appear for would not be 



480 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



ne^ 



represented. That as the choice was not immediately popular, they would be ge: 
erally men of good abilities for business, and men of reputation for integrity; am 
that forty-eight such men might be a number sufficient. But though it was thought 
reasonable that each colony should have a share in the representative body in some 
degree according to the proportion it contributed to the general treasury, yet the 
proportion of wealth or power of the colonies is not to be judged by the propor- 
tion here fixed; because it was at first agreed, that the greatest colony shotdd not 
have more than seven members, nor the least less than two; and the setting these 
proportions between these two extremes was not nicely attended to, as it woidd 
find itself, after the first election, from the sums brought into the treasury, as by 
a subsequent article. 

Place of First Meeting 

who shall meet for the first time at the city of Philadelphia in Pennsylvania, 

being called by the President-General as soon as conveniently may be after his 
appointment. 

Philadelphia was named as being nearer the centre of the colonies, where the 
commissioners would be well and cheaply accommodated. The high roads, 
through the whole extent, are for the most part very good, in which forty or fifty 
miles a day may very well be, and frequently are, travelled. Great part of the 
way may Ukezvise be gone by water. In summer time, the passages are frequently 
performed in a week from Charleston to Philadelphia and New York; and from 
Rhode Island to Nexv York through the Sound, in two or three days; and from 
New York to Philadelphia, by water and land, in two days, by stage, boats and 
wheel carriages that set out every other day. The journey from Charleston to 
Philadelphia may likewise be facilitated by boats running up Chesapeake Bay 
three hundred miles. But if the whole journey be performed on horseback, the 
most distant members, vis. the two from New Hampshire and from South Caro- 
lina may probably render themselves at Philadelphia in fifteen or twenty days; the 
majority may be there in much less time. 

New Election 

That there shall be a new election of the members of the Grand Council every 
three years ; and, on the death or resignation of any member, his place should be 
supplied by a new choice at the next sitting of the Assembly of the colony he 
represented. 

Some colonies have annual assemblies, some continue during a governor's 
pleasure; three years was thought a reasonable medium, as affording a new mem- 
ber time to improve himself in the business, and to act after such improvement, 
and yet giving opportunities, frequently enough, to change him, if he has mis- 
behaved. 

Proportion of Members After the First Three Years 

That after the first three years, when the proportion of money arising out of j 



APPENDIX 481 

each colony to the general treasury can be known, the number of members to be 
chosen for each colony shall from time to time, in all ensuing elections, be regu- 
lated by that proportion, yet so as that the number to be chosen by any one 
province be not more than seven, nor less than two. 

By a subsequent article it is proposed, that the general coxincil shall lay and 
levy such general duties, as to them may appear most equal and least burthen- 
some, &c. Suppose, for instance, they lay a small duty or excise on some com- 
modity imported into or made in the colonies, and pretty generally and equally 
used in all of them, as rum perhaps, or wine ; the yearly produce of this duty or 
excise, if fairly collected, would be in some colonics greater, in others less, as the 
colonies are greater or smaller. When the collector's accounts are brought in, 
the proportions will appear; and from them it is proposed to regulate the propor- 
tion of representatives to be chosen at the next general election, zdthin the limits 
however of seven and tzvo. These numbers may therefore vary in the course of 
years, as the colonies may in the growth and increase of people. And thus the 
quota of tax from each colony would naturally vary with its circumstances thereby 
preventing all disputes and dissatisfaction about the just proportions due from 
each; which might otherwise produce pernicious consequences, and destroy the 
harmony and good agreement that ought to subsist betzveen the several parts of 
the Union. 

Meetings of the Grand Council, and Call 

That the Grand Council shall meet once in every year, and oftener if occasion 
require, at such time and place as they shall adjourn to at the last preceding 
meeting, or as they shall be called to meet at by the President-General on any 
emergency; he having first obtained in writing the consent of seven of the mem- 
bers to such call, and sent due and timely notice to the whole. 

It was thought, in establishing and governing new colonies or settlements, 
regulating Indian trade, Indian treaties, &c., there would be every year sufficient 
business arise to require at least one meeting, and at such meeting many things 
might be suggested for the benefit of all the colonies. This annual meeting may 
either be at a time or place certain, to be fixed by the president-general and grand 
council at their first meeting; or left at liberty, to be at such time and place as 
they shall adjourn to, or be called to meet at by the president-general. 

In time of zvar it seems convenient, that the meeting should be in that colony, 
which is nearest the seat of action. 

The pozver of calling them on any emergency seemed necessary to be vested 
in the president-general ; but, that such pozver might not be wantonly used to 
harass the members, and oblige them to mat:e frequent long journeys to little pur- 
pose, the consent of seven at least to such call was supposed a convenient guard. 

Continuance 

That the Grand Council have power to choose their speaker ; and shall neither 
be dissolved, prorogued, nor continued sitting longer than six weeks at one time, 
without their own consent or the special command of the crown. 



482 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

The Speaker should he presented for approbation; it being convenient, to pre- 
vent misunderstandings and disgusts, that the mouth of the councils should be a 
person agreeable, if possible, both to the council and president-general. 

Governors have sometimes wantonly exercised the power of proroguing or 
continuing the sessions of assemblies, merely to harass the members and compel 
a compliance ; and sometimes dissolve them on slight disgusts. This it was feared 
might be done by the president-general, if not provided against; and the incon- 
venience and hardship would be greater in the general government than in par- 
ticular colonies, in proportion to the distance the members must be from home 
during sittings, and the long journeys some of them must necessarily take. 

Members' Allowance 

That the members of the Grand Council shall be allowed for their service ten 
shillings sterling per diem, during their session and journey to and from the place 
of meeting; twenty miles to be reckoned a day's journey. 

It was thought proper to allow some wages, lest the expense might deter some 
suitable persons from the service; and not to allozv too great wages, lest unsuit- 
able persons should be tempted to cabal for the employment, for the sake of gain. 
Twenty miles were set down as a day's journey, to allow for accidental hindrances 
on the road, and the greater expenses of travelling than residing at the place of 
meeting. 

Assent of President-General and His Duty 

That the assent of the President-General be requisite to all acts of the Grand 
Council, and that it be his office and duty to cause them to be carried into exe- 
cution. 

The assent of the president-general to all acts of the grand council was made 
necessary, in order to give the crown its due share of influence in this govern- 
ment, and connect it with that of Great Britain. The president-general, besides 
one half of the legislative power, hath in his hands the whole executive power. 

Power of President-General and Grand Council; 
Treaties of Peace and War 

That the President-General, with the advice of the Grand Council, hold or 
direct all Indian treaties, in which the general interest of the colonies may be 
concerned ; and make peace or declare war with Indian nations. 

The power of making peace or war with Indian nations is at present supposed 
to be in every colony, and is expressly granted to some by charter, so that no new 
power is hereby intended to be granted to the colonies. But as, in consequence of 
this power, one colony might make peace with a nation that another was justly 
engaged in war with; or make war on slight occasions without the concurrence or 
approbation of neighbouring colonies, greatly endangered by it; or make par- 
ticular treaties of neutrality in case of a general war, to their own private advan- 
tage in trade, by supplying the common enemy; of all which there have been 



APPENDIX 483 

instances; it was thought better, to have all treaties of a general nature under 
a general direction, that so the good of the whole may be consulted and provided 
for. 

Indian Trade 

That they make such laws as they judge necessary for regulating all Indian 
trade. 

Many quarrels and wars have arisen between the colonies and Indian nations, 
through the bad conduct of traders who cheat the Indians after making them 
drunk, &c., to the great expense of the colonies, both in blood and treasure. Par- 
ticular colonies are so interested in the trade, as not to be willing to admit such cL 
regulation as might be best for the whole; and therefore it was thought best under 
a general direction. 

Indian Purchases 

That they make all purchases, from Indians for the crown, of lands not now 
within the bounds of particular colonies, or that shall not be within their bounds 
when some of them are reduced to more convenient dimensions. 

Purchases from the Indians, made by private persons, have been attended with 
many inconveniences. They have frequently interfered, and occasioned uncer- 
tainty of titles, many disputes and expensive law suits, and hindered the settle- 
ment of the land so disputed. Then the Indians have been cheated by such pri- 
vate purchases, and discontent and wars have been the consequence. These would 
be prevented by public fair purchases. 

Several of the colony charters in America extend their bounds to the South 
Sea, which may be perhaps three or four thousand miles in length to one or two 
hundred miles in breadth. It is supposed they must in time be reduced to dimen- 
sions more convenient for the common purposes of government. 

Very little of the land in those grants is yet purchased of the Indians. 

It is much cheaper to purchase of them, than to take and maintain the pos- 
session by force; for they are generally very reasonable in their demands for land; 
and the expense of guarding a large frontier against their incursions is vastly 
great; because all must be guarded, and always guarded, as we know not where 
or when to expect them. 

New Settlements 

That they make new settlements on such purchases, by granting lands in the 
King's name, reserving a quit-rent to the crown for the use of the general 
treasury. 

It is supposed better that there should be one purchaser than many; and that 
the crown should be that purchaser, or the Union in the name of the crown. By 
this means the bargains may be more easily made, the price not enhanced by 
numerous bidders, future disputes about private Indian purchases, and monopo- 
lies of vast tracts to particular persons (which are prejudicial to the settlement 
and peopling of the country), prevented; and, the land being again granted in 



484 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

small tracts to the settlers, the quit-rents reserved may in time become a fund for 
support of government, for defence of the country, ease of taxes, &c. 

Strong forts on the Lakes, the Ohio, &c., may, at the same time they secure 
our present frontiers, serve to defend new colonies settled under their protection; 
and such colonies would also mutually defend and support such forts, and better 
secure the friendship of the far Indians. 

A particular colony has scarce strength enough to extend itself by new settle- 
ments, at so great a distance from the old; but the joint force of the Union might 
suddenly establish a new colony or two in those parts, or extend an old colony 
to particular passes, greatly to the security of our present frontiers, increase of 
trade and people, breaking off the French communication between Canada and 
Louisiana, and speedy settlement of the intermediate lands. 

The power of settling new colonies is therefore thought a valuable part of the 
plan, and what cannot so well be executed by two unions as by one. 

Laws to Govern Them 

That they make laws for regulating and governing such new settlements, till! 
the crown shall think fit to form them into particular governments. 

The making of laws suitable for the new colonies, it was thought, zvotild be 
properly vested in the president-general and grand council; under zvhose protec-^- 
tion they must at first necessarily be, and who would be well acquainted witl 
their circumstances, as having settled them. When they are become sufficiently 
populous, they may by the crozvn be formed into complete and distinct govern^, 
ments. 

The appointment of a sub-president by the crown, to take place in case of the 
death or absence of the president-general, would perhaps be an improvement oj 
the plan; and if all the governors of particular provinces were to be formed into" 
a standing council of state, for the advance and assistance of the president-general, 
it might be another considerable improvement. 

Raise Soldiers and Equip Vessels, &c. 

That they raise and pay soldiers and build forts for the defence of any of the 
colonies, and equip vessels of force to guard the coasts and protect the trade on 
the ocean, lakes, or great rivers; but they shall not impress men in any colony, 
without the consent of the legislature. 

It zvas thought, that quotas of men, to be raised and paid by the several colo- 
nies, and joined for any public service, could not akvays be got together with the 
necessary expedition. For instance, suppose one thousand men should be wanted 
in New Hampshire on any emergency. To fetch them by fifties and hundreds out 
of every colony, as far as South Carolina, would be inconvenient, the transpor- 
tation chargeable, and the occasion perhaps passed before they could be assem- 
bled; and therefore that it would be best to raise them (by offering bounty-money 
and pay) near the place where they would be wanted, to be discharged again zvhen 
the service should be over. 

Particular colonies are at present backward to build forts at their own ex- 



APPENDIX 485 

pense, which they say will he equally useful to their neighbouring colonies; who 
refuse to join, on a presumption that such forts will be built and kept up, though 
they contribute nothing. This unjust conduct weakens the whole; but the forts 
being for the good of the whole, it was thought best they should be built and 
maintained by the whole, out of the common treasury. 

In the time of war, small vessels of force are sometim.es necessary in the colo- 
nies to scour the coasts of small privateers. These being provided by the Union 
will be an advantage in turn to the colonies which are situated on the sea, and 
whose frontiers on the landside, being covered by other colonies, reap but little 
immediate benefit from the advanced forts. 

Power to Make Laws, Lay Duties, &c. 

That for these purposes they have power to make laws, and lay and levy such 
general duties, imposts, or taxes, as to them shall appear most equal and just 
(considering the ability and other circumstances of the inhabitants in the several 
colonies), and such as may be collected with the least inconvenience to the people; 
rather discouraging luxury, than loading industry with unnecessary burthens. 

The laws which the president-general and grand council are empowered to 
make are such only as shall be necessary for the government of the settlements ; 
the raising, regulating, and paying soldiers for the general service; the regulating 
of Indian trade; and laying and collecting the general duties and taxes. They 
should also have a pozver to restrain the exportation of provisions to the enemy 
from any of the colonies, on particular occasions, in time of war. But it is not 
intended that they may interfere zvith the constitution and government of the par- 
ticular colonies; zvho are to be left to their own laws, and to lay, levy, and apply 
their ozvn taxes as before. 

General Treasurer and Particular Treasurer 

That they may appoint a General Treasurer and Particular Treasurer in each 
government, when necessary ; and from time to time may order the sums in the 
treasuries of each government into the general treasury; or draw on them for 
special payments, as they find most convenient. 

The treasurers here meant are only for the general funds, and not for the par- 
ticular funds of each colony, which remain in the hands of their own treasurers 
at their ozvn disposal. 

Money, How to Issue 

Yet no money to issue but by joint orders of the President-General and Grand 
Council; except where sums have been appropriated to particular purposes, and 
the President-General is previously empowered by an act to draw such sums. 

To prevent misapplication of tJie money, or even application that might be dis- 
satisfactory to the crozmi or the people, it wa.s thought necessary, to join the 
president-general and grand council in all issues of money. 



486 the united states: a study in international organization 

Accounts 

That the general accounts shall be yearly settled and reported to the several 
Assemblies. 

By communicating the accounts yearly to each Assembly, they will he satisHed 
of the prudent and honest conduct of their representatives in the grand council. 

Quorum 

That a quorum of the Grand Council, empowered to act with the President- 
General, do consist of twenty-five members; among whom there shall be one or 
more from a majority of the colonies. 

The quorum seems large, but it was thought it would not be satisfactory to the 
colonies in general, to have matters of importance to the whole transacted by a 
smaller number, or even by this number of twenty-five, unless there were among 
them one at least from a majority of the colonies; because otherwise, the whole 
quorum being made up of members from three or four colonies at one end of the 
union, something might be done that would not be equal with respect to the rest, 
and thence dissatisfaction and discords might rise to the prejudice of the whole. 

Laws to be Transmitted 

That the laws made by them for the purposes aforesaid shall not be repugnant, 
but, as near as may be, agreeable to the laws of England, and shall be transmitted 
to the King in Council for approbation, as soon as may be after their passing ; and 
if not disapproved within three years after presentation, to remain in force. 

This was thought necessary for the satisfaction of the crowm, to preserve the 
connexion of the parts of the British empire with the whole, of the members with 
the head, and to induce greater care and circumspection in making of the laws, 
that they be good in themselves and for the general benefit. 

Death of the President-General 

That, in case of the death of the President-General, the Speaker of the Grand 
Council for the time being shall succeed, and be vested with the same powers and 
authorities, to continue till the King's pleasure be known. 

It might be better, perhaps, as was said before, if the crown appointed a vice- 
president, to take place on the death or absence of the president-general; for so 
we should he more sure of a suitable person at the head of the colonies. On the 
death or absence of both, the speaker to take place (or rather the eldest King's 
governor) till his Majesty's pleasure he known. 

Officers. How Appointed 

That all military commission officers, whether for land or sea service, to act 
under this general constitution, shall be nominated by the President-General; but 
the approbation of the Grand Council is to be obtained, before they receive their 



APPENDIX 487 

commissions. And all civil officers are to be nominated by the Grand Council, and 
to receive the President-General's approbation before they officiate. 

It was thought it might he very prejudicial to the service, to have officers ap- 
pointed unknown to the people, or unacceptable, the generality of Americans serv- 
ing willingly under officers they know; and not caring to engage in the service 
under strangers, or such as are often appointed by governors through favour or 
interest. The service here meant, is not the stated, settled service in standing 
troops; hut any sudden and short service, either for defence of our colonies, or 
invading the enemy's country; (such as the expedition to Cape Breton in the 
last war; in which many substantial farmers and tradesmen engaged as common 
soldiers, under officers of their own country, for whom they had an esteem and 
affection; who would not have engaged in a standing army, or under officers from 
England.) It was therefore thought best to give the council the power of ap- 
proving the officers, which the people will look upon as a great security of their 
being good men. And without some such provision as this, it was thought the 
expense of engaging men in the service on any emergency would he much greater, 
and the number who could be induced to engage much less; and that therefore it 
would be most for the king's service and general benefit of the nation, that the 
prerogative should relax a little in this particular throughout all the colonies in 
America; as it had already done much more in the charters of some particular 
colonies, viz. Connecticut and Rhode Island. 

The civil officers will be chiefly treasurers and collectors of taxes; and the 
suitable persons are most likely to be known by the council. 

Vacancies, .How Supplied 

But, in case of vacancy by death or removal of any officer civil or military 
under this constitution, the Governor of the province in which such vacancy 
happens may appoint, till the pleasure of the President-General and Grand Coun- 
cil can be known. 

The vacancies were thought best supplied by the governors in each province, 
till a new appointment can be regularly made; otherzvise the service might suffer 
before the meeting of the president-general and grand council. 

Each Colony May Defend Itself on Emergency, &c. 

That the particular military as well as civil establishments in each colony 
remain in their present state, the general constitution notwithstanding; and that 
on sudden emergencies any colony may defend itself, and lay the accounts of 
expense thence arising before the President-General and General Coiancil, who 
may allow and order payment of the same, as far as they judge such accounts just 
and reasonable. 

Otherzvise the union of the whole would weaken the parts, contrary to the 
design of the union. The accounts are to be judged of by the president-general 
and grand council, and allowed if found reasonable. This was tliought necessary 



^6V> THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

to encourage colonies to defend themselves, as the expense would be light when 
borne by the whole; and also to check imprudent and lavish expense in such 
defences?- 

IV. BENJAMIN FRANKLIN'S SKETCH OF ARTICLES OF 
CONFEDERATION ^ 

Read before Congress July 21, 1775. 

Articles of Confederation and Perpetual Union, Entred in by the 

Delegates of the Several Colonies of New Hampshire, Etc., 

IN General Congress ^ 

Met at Philadelphia May 10. 1775. 

ART. I. 
The Name of this Confederacy shall henceforth be The United Colonies of 
North America. 

1 In Carey's American Museum, 1789, February (pp. 190-194), March (pp. 285-288), 
April (pp. 365-368), there is an elaborate article, "Albany Plan of Union," at the conclusion 
of which appears the following : — 

" Remark February 9, 1789. 

" On Reflection it now seems probable, that if the foregoing Plan or something like it had 
been adopted and carried into Execution, the subsequent Separation of the Colonies from the 
Mother Country might not so soon have happened, nor the Mischiefs suffered on both sides 
have occurred perhaps during another Century. For the Colonies, if so united, would have 
really been, as they then thought themselves, sufficient to their own Defence, and being 
trusted with it, as by the Plan, an Army from Britain, for that purpose would have been 
unnecessary; The Pretences for framing the Stamp Act would then not have existed, nor the 
other Projects for drawing a Revenue from America to Britain by Act of Parhament. which 
were the Causes of the Breach & attended with such terrible Expense of Blood and Treasure; 
so that the different Parts of the Empire might still have remained in Peace and Union. But 
the Fate of this Plan was singular. For then after many Days thorough Discussion of all 
its Parts in Congress it was unanimously agreed to, and Copies ordered to be sent to the 
Assembly of each Province for Concurrence, and one to the Ministry in England for the 
Approbation of the Crown. The Crown disapproved it, as having placed too much Weight 
in the Democratic Part of the Constitution ; and every Assembly as having allowed too much 
to Prerogative. So it was totally rejected." 

The above, as printed in The Museum, omits the word " Remark," but bears date at the 
bottom, Philadelphia, April 9, 1789. It was written by Dr. Franklin and accompanied the 
following letter: — 

"Sir 

" I thank you for the Opportunity you propose to give me of making Alterations in those 
old Pieces of mine which you intend to republish in your Museum. I have no Inclination to 
make any Changes in them; but should like to see the Proof Sheet, supposing your Copies 
may possibly be incorrect.— And if you have no Objection, you may follow the Albany Plan 
with the enclosed Remark but not as from me. 

" I am. Sir 

" Your humble Servant, 

(Signed) " B. Franklin." 

Addressed on the back : — 

" Mr. Mathew Carey 

" Printer of the Museum." 

The originals of the above papers, in the handwriting of Dr. Franklin, are in my possession. 

Henry Carey Baird, 

Philadelphia. — Ed. 

- Reprinted from Albert Henry Smyth, The Writings of Benjamin Franklin (New York, 
The Macmillan Co.), Vol. vi, pp. 420-426. 

3 A contemporary copy exists among the papers of the Continental Congress (vol. 47, 



_ APPENDIX 489 

ART. II. 

The said United Colonies hereby severally enter into a firm League of Friend- 
ship with each other, binding [on] themselves and their Posterity, for [their 
common] Defence against their Enemies, for the Security of their Liberties and 
Properties, the Safety of their Persons and Families, and their mutual and gen- 
eral Welfare. 

ART. III. 

That each Colony shall enjoy and retain as much as it may think fit of its 
own present Laws, Customs, Rights, Privileges, and peculiar jurisdictions within 
its own Limits ; and may amend its own Constitution, as shall seem best to its 
own Assembly or Convention. 

ART. IV. 

That for the more convenient IManagement of general Interests, Delegates 
shall be annually elected in each Colony, to meet in General Congress at such 
Time and Place as shall be agreed on in the next preceding Congress. Only, 
where particular Circumstances do not make a Duration necessary, it is understood 
to be a Rule, that each succeeding Congress be held in a dififerent Colony, till the 
whole Number be gone through; and so in perpetual Rotation; and that accord- 
ingly the next [Congress] after the present shall be held at Annapolis, in Maryland. 

ART. V. 

That the Power and Duty of the Congress shall extend to the Determining on 
War and Peace; the entring into Alliances, [sending and receiving ambassadors] 
(the reconciliation with Great Britain) ; the settling all Disputes and Differences 
between Colony and Colony, [about Limits or any other cause,] if such should 
arise ; and the Planting of new Colonies ; when proper. The Congress shall also 
make such general [ordinances] as, tho' necessary to the General Welfare, par- 
ticular Assemblies cannot be competent to, viz. [those that may relate to our 
general] Commerce, or general Currency; the establishment of Posts; [and] the 
Regulation of [our common] Forces. The Congress shall also have the appoint- 
ment of all General Officers, civil and military, appertaining to the general Con- 
federacy, such as General Treasurer, Secretary, &c. 

ART. VI. 

All Charges of Wars, and all other general Expences [to be] incurr'd for 
the common Welfare, shall be defray'd out of a common Treasury, which is to 
be supply'd by each Colony in proportion to its Number of Male Polls between 
16 and 60 Years of Age ; the Taxes for paying that Proportion [are] to be laid 
and levied by [the] Laws of each Colony. 

folios 1-7), L. C. It is endorsed by Franklin: "Sketch of Articles of Confederation," and, 
in a different hand, "Read before Congress July 21, 1775." — Smyth's note. 



490 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

ART. VII. 

The Number of Delegates to be elected and sent to the Congress by each 
Colony shall be regulated, from time to time, by the Number of [such] Polls 
return'd; so as that one Delegate be allowed for every 5000 Polls. And the 
Delegates are to bring with them to every Congress an authenticated return of 

the number of Polls in their respective Provinces, [which is] to be ,/ 

annually 

taken for the Purposes above mentioned. 

ART. VIII. 

At every Meeting of the Congress, one half of the Members return'd, exclu- 
sive of Proxies, be necessary to make a Quorum ; and each Delegate at the Con- 
gress shall have a Vote in all Cases, and, if necessarily absent, shall be allow'd to 
appoint [any other Delegate from the same Colony to be his] Proxy, who may 
vote for him. 

ART. IX. 

An executive Council shall be appointed by the Congress [out of their own 
Body,] consisting of 12 Persons ; of whom, in the first appointment, [one third, 
viz.] (four,) shall be for one Year, (four) for two Years, and (four) for three 
Years ; and as the said terms expire, the Vacancies shall be filled by appointments 
for three Years; whereby one Third of the Members will be changed annually. 
And each Person who has served the said Term [of three Years] as Counsellor, 
shall have a Respite of three Years, before he can be elected again. This Council, 
[of whom two thirds shall be a Quorum] in the Recess of Congress, is to execute 
what shall have been enjoin'd thereby; [to] manage the general [Continental] 
Business and Interests ; to receive applications from foreign Countries ; [to] 
prepare Matters for the Consideration of the Congress ; to fill up, [pro tempore,] 
[continental] offices, that fall vacant; and to draw on the General Treasurer for 
such Monies as may be necessary for general Services, and appropriated by the 
Congress to such Services. 

ART. X. 

No Colony shall engage in an offensive War with any Nation of Indians with- 
out the Consent of the Congress, or great Council above mentioned, who are first 
to consider the Justice and Necessity of such War. 

ART. XI. 

A perpetual Alliance, oflFensive and defensive, is to be entred into as soon as 
may be with the Six Nations ; their Limits to be ascertain'd and secur'd to them ; 
their Land not to be encroach'd on, nor any private [or Colony] Purchases made 
of them hereafter to be held good ; nor any [Contract for Lands] to be made, but 
between the Great Council [of the Indians] at Onondaga and the General Con- 



APPENDIX 491 

gress. The Boundaries and Lands of all the other Indians shall also be [ascer- 
tain'd and] secur'd to them [in the same manner,] and Persons appointed to 
reside among them in proper Districts ; who shall take care to prevent Injustice 
in the Trade with them ; [and be enabled at our general Expence,] by occasional 
small supplies, to relieve their personal Wants and Distresses. And all Purchases 
from them shall be by the Congress, for the General Advantage and Benefit of 
the United Colonies. 

ART. XII. 

As all new Institutions may have Imperfections, which only Time and Ex- 
perience can discover, it is agreed, that the General Congress, from time [to time,] 
shall propose such amendments of the Constitution as may be found necessary; 
which, being approv'd by a Majority of the Colony Assemblies, shall be equally 
binding with the rest of the Articles of this Confederation. 

ART. XIII. 

Any and every Colony from Great Britain [upon the continent of North 
America,] not at present engag'd in our Association, may, upon application [and 
joining the said Association,] be receiv'd into the Confederation, viz. [Ireland,] 
the West India Islands, Quebec, St. John's, Nova Scotia, Bermudas, and the East 
and West Floridas ; and shall [thereupon] be entitled to all the advantages of our 
Union, mutual Assistance, and Commerce. 

These Articles shall be propos'd to the several Provincial Conventions or 
Assemblies, to be by them consider'd ; and if approved, they are advis'd to im- 
power their Delegates to agree to and ratify the same in the ensuing Congress. 
After which the Union thereby establish'd is to continue firm, till the Terms of 
ReconciHation proposed in the Petition of the last Congress to the King are 
agreed to ; till the Acts since made, restraining the American Commerce [and 
Fisheries,] are repeal'd; till Reparation is made for the Injury done to Boston, 
by shutting up its Port, for the Burning of Charlestown, and for the Expence of 
this unjust War; and till all the British Troops are withdrawn from America. 
On the Arrival of these Events, the Colonies return to their former Connection 
and Friendship with Britain : But on Failure thereof, this Confederation is to 
be perpetual. 

Read Before Congress July 21, 1775 

Whereas.^ It hath pleased God to bless these countries with a most plentiful 

^The Resolutions which follow were printed by Mr. Bigelow ("The Complete Works of 
Benjamin Franklin," Vol. V, p. 554) from th« original Ms. in D. S. W. They had been earlier 
printed in the Archives of New Jersey, Vol. X, p. 691. The use of brackets, etc., in the fol- 
lowing text is thus explained by Mr. Worthington C. Ford. " As I find some differences 
between the articles as printed in the New Jersey Archives, I have taken the original on the 
enclosed sheets, giving the parts erased, and also distinguishing the carets or interlinear 
words thus []. The 'free-trade' resolutions were brought in on the same day as the articles, 
are written on the same paper, and all in B. F.'s Ms. I am quite sure they originally formed 
a part of the articles (although not numbered and placed in a different volume in the records 
of the Continental Congress). They were even endorsed 'Articles of Confederation,' though 
a pen was afterwards run through the endorsement." — Smyth's note. 



492 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION - 

i 

harvest, whereby much corn and other provisions can be spared to foreign nations 
who may want the same. Resolved, That [after the expiration of Six Months] 
from (and afterY the [20th of July Instant,] {being one full year aftcrY [being] 
the Day appointed by a late Act of the Parliament of Great Britain, for restrain- 
ing the Trade of the Confederate Colonies, all Custom-Houses [therein] (if the 
Act be not first rescinded) shall be shut up. and all officers of the same discharged 
from the Execution of their several Functions, and all the Ports of the said Col- 
onies are hereby declared to be thenceforth open to the Ships of every State in 
Europe that will admit of our Commerce and protect it ; who may [torn off} and 
expose to sale free of all Duties their respective Produce and Manufactures, and 
every kind of Merchandize, excepting Teas, and the Merchandize of Great Brit- 
ain, Ireland, and the British West India Islands. 

Resolved, That we will to the utmost of our Power, maintain and support this 
Freedom of Commerce for [two] years certain after its Commencement, any 
reconciliation between us and Britain notwithstanding; and as much longer be- 
yond that term, as the late Acts of Parliament for restoring the Restraining the 
Commerce and fisheries, and altering the Laws and Charters of any of the Colo- 
nies, shall continue unrepealed. 

Endorsed — No. 2. {Articles of Confederation) A proposal for opening 
the ports of N. A. bro' in by committee — read July 21, 1775 — on motion post- 
poned for future consideration. 



V. THE DECLARATION OF INDEPENDENCE, JULY 4, 1776.^ 

The unanimous Declaration of the thirteen united States of America. 

When in the Course of human events, it becomes necessary for one people to 
dissolve the political bands which have connected them with another, and to as- 
sume among the Powers of the earth, the separate and equal station to which the 
Laws of Nature and of Nature's God entitle them, a decent respect to the opin- 
ions of mankind requires that they should declare the causes which impel them 
to the separation. 

We hold these truths to be self-evident, that all men are created equal, that 
they are endowed by their Creator with certain unalienable Rights, that among 
these are Life, Liberty and the pursuit of Happiness. That to secure these 
rights. Governments are instituted among Men, deriving their just powers from 
the consent of the governed. That whenever any Form of Government becomes 
destructive of these ends, it is the Right of the People to alter or to abolish it, 
and to institute new Government, laying its foundation on such principles and 
organizing its powers in such form, as to them shall seem most likely to effect 
their Safety and Happiness. . . . 

We, therefore, the Representatives of the united States of America, in General 
Congress, Assembled, appealing to the Supreme Judge of the world for the recti- 



1 The words in italics show the erasures in the original Ms. 

2 Revised Statutes of the United States, 1878, pp. 3-6. 



J 



APPENDIX 493 

tude of our intentions, do, in the Name, and by Authority of the good People of 
these Colonies, solemnly publish and declare, That these United Colonies are, and 
of Right ought to be Free and Independent States ; that they are Absolved from 
all Allegiance to the British Crown, and that all political connection between them 
and the State of Great Britain, is and ought to be totally dissolved; and that as 
Free and Independent States, they have full Power to levy War, conclude Peace, 
contract Alliances, establish Commerce, and to do all other Acts and Things 
which Independent States may of right do. And for the support of this Declara- 
tion, with a firm reliance on the Protection of Divine Providence, we mutually 
pledge to each other our Lives, our Fortunes and our sacred Honor. 

JOHN HANCOCK. 
New Hampshire 

JOSIAH BaRTLETT 

Wm. Whipple 

Matthew Thornton 
Massachusetts Bay 

Saml. Adams 

John Adams 

RoBT. Treat Paine 

Elbridge Gerry 
Rhode Island 

Step. Hopkins 

William Ellery 
Connecticut 

Roger Sherman 

Sam'el Huntington 

Wm. Williams 

Oliver Wolcott 
New York 

Wm. Floyd 

Phil. Livingston 

Frans. Lewis 

Lewis Morris 
New Jersey 

RicHD. Stockton 

Jno. Witherspoon 

Fras. Hopkinson 

John Hart 

Abra. Clark 
Pennsylvania 

RoBT. Morris 

Benjamin Rush 

Benja. Franklin 

John Morton 



494 the united states: a study in international organization 

Geo. Clymer 

Jas. Smith 

Geo. Taylor 

James Wilson 

Geo. Ross 
Delaware 

Caesar Rodney 

Geo. Read 

Tho. M'Kean 
Marylajid 

Samuel Chase 

Wm. Paca 

Thos. Stone 

Charles Carroll of Carrollton 
Virginia 

George Wythe 

Richard Henry Lee 

Th. Jefferson 

Benja. Harrison 

Thos. Nelson, Jr. 

Francis Lightfoot Lee 

Carter Braxton 
North Carolina 

Wm. Hooper 

Joseph Hewes 

John Penn 
South Carolina 

Edward Rutledge 

Thos. Heyward, Junr. 

Thomas Lynch, Junr. 

Arthur Middleton 
Georgia 

Button Gwinnett 

Lyman Hall 

Geo. Walton 

VI. ARTICLES OF CONFEDERATION ADOPTED BY CONGRESS, 
NOVEMBER 15, 1777, RATIFIED BY THE LAST OF THE THIR- 
TEEN STATES, MARCH 1, 1781.i 

To all to whom these Presents shall come, we the undersigned Delegates of the 
States affixed to our Names send greeting. 
Whereas the Delegates of the United States of America in Congress assembled 
did on the fifteenth day of November in the Year of our Lord One Thousand 

1 Revised Statutes of the United States, 1878, pp. 7-12. 



APPENDIX 495 

Seven Hundred and Seventyseven, and in the Second Year of the Independence 
of America agree to certain articles of Confederation and perpetual Union be- 
tween the States of Newhampshire, Massachusetts-bay, Rhodeisland and Provi- 
dence Plantations, Connecticut, Nevi^ York, New Jersey, Pennsylvania, Dela- 
ware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia in the 
Words following, viz. 

"Articles of Confederation and perpetual Union between the States of New- 
hampshire, Massachusetts-hay, Rhodeisland and Providence Plantations, 
Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, 
Virginia, North-Carolina, South-Carolina and Georgia. 

Article I. The stile of this confederacy shall be " The United States of 
America." 

Article II. Each State retains its sovereignty, freedom and independence, 
and every power, jurisdiction and right, which is not by this confederation ex- 
pressly delegated to the United States, in Congress assembled. 

Article III. The said States hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security of their lib- 
erties, and their mutual and general welfare, binding themselves to assist each 
other, against all force ofiFered to, or attacks made upon them, or any of them, 
on account of religion, sovereignty, trade, or any other pretence whatever. 

Article IV. The better to secure and perpetuate mutual friendship and in- 
tercourse among the people of the different States in this Union, the free inhabi- 
tants of each of these States, paupers, vagabonds and fugitives from justice ex- 
cepted, shall be entitled to all privileges and immunities of free citizens in the 
several States ; and the people of each State shall have free ingress and regress 
to and from any other State, and shall enjoy therein all the privileges of trade 
and commerce, subject to the same duties, impositions and restrictions as the 
inhabitants thereof respectively, provided that such restrictions shall not extend 
so far as to prevent the removal of property imported into any State, to any 
other State of which the owner is an inhabitant; provided also that no imposi- 
tion, duties or restriction shall be laid by any State, on the property of the 
United States, or either of them. 

If any person guilty of, or charged with treason, felony, or other high misde- 
meanor in any State, shall flee from justice, and be found in any of the United 
States, he shall upon demand of the Governor or Executive power, of the State 
from which he fled, be delivered up and removed to the State having jurisdiction 
of his offence. 

Full faith and credit shall be given in each of these States to the records, acts 
and judicial proceedings of the courts and magistrates of every other State. 

Article V. For the more convenient management of the general interest of 
the United States, delegates shall be annually appointed in such manner as the 
legislature of each State shall direct, to meet in Congress on the first Monday in 
JSTovember, in every year, with a power reserved to each State, to recall its dele- 



496 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

gates, or any of them, at any time within the year, and to send others in their 
stead, for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by more than 
seven members; and no person shall be capable of being a delegate for more 
than three years in any term of six years ; nor shall any person, being a delegate, 
be capable of holding any office under the United States, for which he, or another 
for his benefit receives any salary, fees or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the States, and 
while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assembled, each 
State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or questioned 
in any court, or place out of Congress, and the members of Congress shall be 
protected in their persons from arrests and imprisonments, during the time of 
their going to and from, and attendance on Congress, except for treason, felony, 
or breach of the peace. 

Article VI. No State without the consent of the United States in Congress 
assembled, shall send any embassy to, or receive any embassy from, or enter into 
any conference, agreement, alliance or treaty with any king prince or state; nor 
shall any person holding any office of profit or trust under the United States, or 
any of them, accept of any present, emolument, office or title of any kind whatever 
from any king, prince or foreign state; nor shall the United States in Congress 
assembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation or alliance 
whatever between them, without the consent of the United States in Congress 
assembled, specifying accurately the purposes for which the same is to be en- 
tered into, and how long it shall continue. 

No State shall lay any imposts or duties, which may interfere with any stipu- 
lations in treaties, entered into by the United States in Congress assembled, with 
any king, prince or state, in pursuance of any treaties already proposed by Con- 
gress, to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, except such 
number only, as shall be deemed necessary by the United States in Congress as- 
sembled, for the defence of such State, or its trade ; nor shall any body of forces 
be kept up by any State, in time of peace, except such number only, as in the 
judgment of the United States, in Congress assembled, shall be deemed requisite 
to garrison the forts necessary for the defence of such State; but every State 
shall always keep up a well regulated and disciplined militia, sufficiently armed 
and accoutered, and shall provide and constantly have ready for use, in public 
stores, a due number of field pieces and tents, and a proper quantity of arms, 
ammunition and camp equipage. 

No State shall engage in any war without the consent of the United States in 
Congress assembled, unless such State be actually invaded by enemies, or shall 
have received certain advice of a resolution being formed by some nation of 



APPENDIX 497 

Indians to invade such State, and the danger is so imminent as not to admit of a 
delay, till the United States in Congress assembled can be consulted: nor shall 
any State grant commissions to any ships or vessels of war, nor letters of marque 
or reprisal, except it be after a declaration of war by the United States in Con- 
gress assembled, and then only against the kingdom or state and the subjects 
thereof, against which war has been so declared, and under such regulations as 
shall be established by the United States in Congress assembled, unless such 
State be infested by pirates, in which case vessels of war may be fitted out for 
that occasion, and kept so long as the danger shall continue, or until the United 
States in Congress assembled shall determine otherwise. 

Article VII. When land-forces are raised by any State for the common de- 
fence, all officers of or under the rank of colonel, shall be appointed by the Legis- 
lature of each State respectively by whom such forces shall be raised, or in such 
manner as such State shall direct, and all vacancies shall be filled up by the State 
which first made the appointment. 

Article VIII. All charges of war, and all other expenses that shall be in- 
curred for the common defence or general welfare, and allowed by the United 
States in Congress assembled, shall be defrayed out of a common treasury, which 
shall be supplied by the several States, in proportion to the value of all land 
within each State, granted to or surveyed for any person, as such land and the 
buildings and improvements thereon shall be estimated according to such mode 
as the United States in Congress assembled, shall from time to time direct and 
appoint. 

The taxes for paying that proportion shall be laid and levied by the authority 
and direction of the Legislatures of the several States within the time agreed upon 
by the United States in Congress assembled. 

Article IX. The United States in Congress assembled, shall have the sole 
and exclusive right and power of determining on peace and war, except in the 
cases mentioned in the sixth article — of sending and receiving ambassadors — 
entering into treaties and alliances, provided that no treaty of commerce shall be 
made whereby the legislative power of the respective States shall be restrained 
from imposing such imposts and duties on foreigners, as their own people are 
subjected to, or from prohibiting the exportation or importation of any species 
of goods or commodities whatsoever — of establishing rules for deciding in all 
cases, what captures on land or water shall be legal, and in what manner prizes 
taken by land or naval forces in the service of the United States shall be divided 
or appropriated — of granting letters of marque and reprisal in times of peace — 
appointing courts for the trial of piracies and felonies committed on the high 
seas and establishing courts for receiving and determining finally appeals in all 
cases of captures, provided that no member of Congress shall be appointed a 
judge of any of the said courts. 

The United States in Congress assembled shall also be the last resort on appeal 
in all disputes and dii¥erences now subsisting or that hereafter may arise between 
two or more States concerning boundary, jurisdiction or any other cause what- 



498 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

ever ; which authority shall always be exercised in the manner following. When- 
ever the legislative or executive authority or lawful agent of any State in con- 
troversy with another shall present a petition to Congress, stating the matter in 
question and praying for a hearing, notice thereof shall be given by order of 
Congress to the legislative or executive authority of the other State in controversy, 
and a day assigned for the appearance of the parties by their lawful agents, who 
shall then be directed to appoint by joint consent, commissioners or judges to 
constitute a court for hearing and determining the matter in question : but if they 
can not agree. Congress shall name three persons out of each of the United States, 
and from the list of such persons each party shall alternately strike out one, the 
petitioners beginning, until the number shall be reduced to thirteen; and from 
that number not less than seven, nor more than nine names as Congress shall 
direct, shall in the presence of Congress be drawn out by lot, and the persons 
whose names shall be so drawn or any five of them, shall be commissioners or 
judges, to hear and finally determine the controversy, so always as a major part 
of the judges who shall hear the cause shall agree in the determination: and if 
either party shall neglect to attend at the day appointed, without showing reasons, 
which Congress shall judge sufficient, or being present shall refuse to strike, the 
Congress shall proceed to nominate three persons out of each State, and the 
Secretary of Congress shall strike in behalf of such party absent or refusing; 
and the judgment and sentence of the court to be appointed, in the manner before 
prescribed, shall be final and conclusive ; and if any of the parties shall refuse to 
submit to the authority of such court, or to appear or defend their claim or cause, 
the court shall nevertheless proceed to pronounce sentence, or judgment, which 
shall in like manner be final and decisive, the judgment or sentence and other 
proceedings being in either case transmitted to Congress, and lodged among the 
acts of Congress for the security of the parties concerned : provided that every 
commissioner, before he sits in judgment, shall take an oath to be administered 
by one of the judges of the supreme or superior court of the State, where the 
cause shall be tried, " well and truly to hear and determine the matter in question, 
according to the best of his judgment, without favour, afifection or hope of 
reward : " provided also that no State shall be deprived of territory for the 
benefit of the United States. 

All controversies concerning the private right of soil claimed under different 
grants of two or more States, whose jurisdiction as they may respect such lands, 
and the States which passed such grants are adjusted, the said grants or either of 
them being at the same time claimed to have originated antecedent to such settle- 
ment of jurisdiction, shall on the petition of either party to the Congress of the 
United States, be finally determined as near as may be in the same manner as is 
before prescribed for deciding disputes respecting territorial jurisdiction between 
different States. 

The United States in Congress assembled shall also have the sole and exclu- 
sive right and power of regulating the alloy and value of coin struck by their own 
authority, or by that of the respective States. — fixing the standard of weights 



APPENDIX 499 

and measures throughout the United States. — regulating the trade and managing 
all affairs with the Indians, not members of any of the States, provided that the 
legislative right of any State within its own limits be not infringed or violated ■ — 
establishing and regulating post-offices from one State to another, throughout all 
the United States, and exacting such postage on the papers passing thro' the 
same as may be requisite to defray the expenses of the said office — appointing 
all officers of the land forces, in the service of the United States, excepting regi- 
mental officers — appointing all the officers of the naval forces, and commission- 
ing all officers whatever in the service of the United States — making rules for 
the government and regulation of the said land and naval forces, and directing 
their operations. 

The United States in Congress assembled shall have authority to appoint a 
committee, to sit in the recess of Congress, to be denominated " A Committee of 
the States," and to consist of one delegate from each State ; and to appoint such 
other committees and civil officers as may be necessary for managing the general 
affairs of the United States under their direction — to appoint one of their num- 
ber to preside, provided that no person be allowed to serve in the office of presi- 
dent more than one year in any term of three years; to ascertain the necessary 
sums of money to be raised for the service of the United States, and to appro- 
priate and apply the same for defraying the public expenses — to borrow money, 
, or emit bills on the credit of the United States, transmitting every half year to 
the respective States an account of the sums of money so borrowed or emitted, — 
to build and equip a navy — to agree upon the number of land forces, and to 
make requisitions from each State for its quota, in proportion to the number of 
white inhabitants in such State ; which requisition shall be binding, and thereupon 
the Legislature of each State shall appoint the regimental officers, raise the men 
and cloath, arm and equip them in a soldier like manner, at the expense of the 
United States ; and the officers and men so cloathed, armed and equipped shall 
march to the place appointed, and within the time agreed on by the United States 
in Congress assembled: but if the United States in Congress assembled shall, on 
consideration of circumstances judge proper that any State should not raise men, 
or should raise a smaller number than its quota, and that any other State should 
raise a greater number of men than the quota thereof, such extra number shall 
be raised, officered, cloathed, armed and equipped in the same manner as the quota 
of such State, unless the legislature of such State shall judge that such extra 
number cannot be safely spared out of the same, in which case they shall raise 
officer, cloath, arm and equip as many of such extra number as they judge can 
be safely spared. And the officers and men so cloathed, armed and equipped, 
shall march to the place appointed, and within the time agreed on by the United 
States in Congress assembled. 

The United States in Congress assembled shall never engage in a war, nor 
grant letters of marque and reprisal in time of peace, nor enter into any treaties 
or alliances, nor coin money, nor regulate the value thereof, nor ascertain the 
sums and expenses necessary for the defence and welfare of the United States, 



500 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

or any of them, nor emit bills, nor borrow money on the credit of the United 
States, nor appropriate money, nor agree upon the number of vessels of war, to 
be built or purchased, or the number of land or sea forces to be raised, nor ap- 
point a commander in chief of the army or navy, unless nine States assent to the 
same: nor shall a question on any other point, except for adjourning from day 
to day be determined, unless by the votes of a majority of the United States in 
Congress assembled. 

The Congress of the United States shall have power to adjourn to any time 
within the year, and to any place within the United States, so that no period of 
adjournment be for a longer duration than the space of six months, and shall 
publish the journal of their proceedings monthly except such parts thereof re- 
lating to treaties, alliances or military operations, as in their judgment require 
secresy ; and the yeas and nays of the delegates of each State on any question shall 
be entered on the journal, when it is desired by any delegate ; and the delegates 
of a State, or any of them, at his or their request shall be furnished with a 
transcript of the said journal, except such parts as are above excepted, to lay 
before the Legislatures of the several States. 

Article X. The committee of the States, or any nine of them, shall be au- 
thorized to execute, in the recess of Congress, such of the powers of Congress 
as the United States in Congress assembled, by the consent of nine States, shall 
from time to time think expedient to vest them with ; provided that no power be 
delegated to the said committee, for the exercise of which, by the articles of con- 
federation, the voice of nine States in the Congress of the United States assem- 
bled is requisite. 

Article XL Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all the ad- 
vantages of this Union : but no other colony shall be admitted into the same, unless 
such admission be agreed to by nine States. 

Article XIL All bills of credit emitted, monies borrowed and debts con- 
tracted by, or under the authority of Congress, before the assembling of the 
United States, in pursuance of the present confederation, shall be deemed and 
considered as a charge against the United States, for payment and satisfaction 
whereof the said United States, and the public faith are hereby solemnly pledged. 

Article XIIL Every State shall abide by the determinations of the United 
States in Congress assembled, on all questions which by this confederation are 
submitted to them. And the articles of this confederation shall be inviolably 
observed by every State, and the Union shall be perpetual; nor shall any alter- 
ation at any time hereafter be made in any of them ; unless such alteration be 
agreed to in a Congress of the United States, and be afterwards confirmed by 
the Legislatures of every State. 

And whereas it hath pleased the Great Governor of the world to incline the 
hearts of the Legislatures we respectively represent in Congress, to approve of, 
and to authorize us to ratify the said articles of confederation and perpetual 
union. Know ye that we the undersigned delegates, by virtue of the power and 



APPENDIX 501 

authority to us given for that purpose, do by these presents, in the name and in 
behalf of our respective constituents, fully and entirely ratify and confirm each 
and every of the said articles of confederation and perpetual union, and all and 
singular the matters and things therein contained : And we do further solemnly 
plight and engage the faith of our respective constituents, that they shall abide 
by the determinations of the United States in Congress assembled, on all questions, 
which by the said confederation are submitted to them. And that the articles 
thereof shall be inviolably observed by the States we re[s]pectively represent, and 
that the Union shall be perpetual. 

In witness whereof we have hereunto set our hands in Congress. Done at 
Philadelphia in the State of Pennsylvania the ninth day of July in the year of 
our Lord one thousand seven hundred and seventy-eight, and in the third year 
of the independence of America. 

On the part & behalf of the State of New Hampshire. 

JOSIAH BaRTLETT, 

John Wentworth, Junr., 

August 8th, 1778. 

On the part and behalf of the State of Massachusetts Bay. 
John Hancock, 
Samuel Adams, 
Eldbridge Gerry, 
Francis Dana, 
James Lovell, 
Samuel Holten. 

On the part and behalf of the State of Rhode Island and Providence Plantations. 

William Ellery, 
Henry Marchant, 
John Collins. 

On the part and behalf of the State of Connecticut. 
Roger Sherman, 
Samuel Huntington, 
Oliver Wolcott, 
Titus Hosmer, 
Andrew Adams. 

On the part and behalf of the State of New York. 
Jas. Duane, 
Era. Lewis, 
Wm. Duer, 
Gouv. Morris. 

On the part and in behalf of the State of New Jersey, Novr. 26, 1778. 

Jno. Witherspoon, 
Nathl. Scudder. 



502 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

On the part and behalf of the State of Pennsylvania. 
RoBT. Morris, 
Daniel Roberdeau, 
JoNA. Bayard Smith, 
William Clingan, 
Joseph Reed, 22d July, 1778. 
On the part & behalf of the State of Delaware. 

Tho. M'Kean, Feby. 12, 1779. 
John Dickinson, May 5th, 1779. 
Nicholas Van Dyke. 
On the part and behalf of the State of Maryland. 

John Hanson, March 1, 1781. 
Daniel Carroll, Mar. 1, 1781. 
On the part and behalf of the State of Virginia. 
Richard Henry Lee, 
John Banister, 
Thomas Adams, 
Jno. Harvie, 
Francis Lightfoot Lee. 

On the part and behalf of the State of No. Carolina. 

John Penn, July 21st, 1778. 
Corns. Harnett, 
Jno. Williams. 

On the part & behalf of the State of South Carolina. 
Henry Laurens, 
William Henry Drayton, 
Jno. Mathews, 

RiCHD. HUTSON, 

Thos. Heyward, Junr. 
On the part & behalf of the State of Georgia. 

Jno. Walton, 24th July, 1778. 
Edwd. Telfair, 
Edwd. Langworthy. 

VII. THE CONSTITUTION OF THE UNITED STATES ADOPTED 

SEPTEMBER 17, 1787, IN EFFECT FROM AND 

AFTER MARCH 4, 1789.^ 

We the People of the United States, in Order to form a more perfect Union, 
establish Justice, insure domestic Tranquility, provide for the common defence, 
promote the general Welfare, and secure the Blessings of Liberty to ourselves and 

1 The text of the Constitution, and the amendments thereto, are taken from the Revised 
Statutes of the United States, 1878, and Senate Document No. 12, 63d Congress, 1st Session. 

The numbers prefixed to the clauses of the Constitution, and here placed in parentheses, 
do not appear in the original text 



1 



APPENDIX 503 

our Posterity, do ordain and establish this Constitution for the United States 
of America. 

Article I 

Section 1. All legislative Powers herein granted shall be vested in a Con- 
gress of the United States, which shall consist of a Senate and House of Repre- 
sentatives. 

Section 2. <^^ The House of Representatives shall be composed of Members 
chosen every second Year by the People of the several States, and the Electors in 
each State shall have the Qualifications requisite for Electors of the most numer- 
ous Branch of the State Legislature. 

*^' No Person shall be a Representative who shall not have attained the Age 
of twenty-five Years, and been seven Years a Citizen of the United States, and 
who shall not, when elected, be an Inhabitant of that State in which he shall b^ 
chosen. 

(3) * [Representatives and direct Taxes shall be apportioned among the several 
States which may be included within this Union, according to their respective 
Numbers, which shall be determined by adding to the whole Number of free 
Persons, including those bound to Service for a Term of Years, and excluding 
Indians not taxed, three fifths of all other Persons.] The actual Enumeration 
shall be made within three Years after the first IVIeeting of the Congress of the 
United States, and within every subsequent Term of ten Years, in such Manner 
as they shall by Law direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have at Least one Repre- 
sentative ; and until such enumeration shall be made, the State of New Hamp- 
shire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and 
Providence Plantations one, Connecticut five, New-York six. New Jersey four, 
Pennsylvania eight, Delaware one, ^^laryland six, Virginia ten, North Carolina 
five. South Carolina five, and Georgia three. 

'•^'> When vacancies happen in the Representation from any State, the Execu- 
tive Authority thereof shall issue Writs of Election to fill such Vacancies. 

<^' The House of Representatives shall chuse their Speaker and other Officers; 
and shall have the sole Power of Impeachment. 

Section 3. [*^^ The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for six Years ; and 
each Senator shall have one Vote.] f 

<^> Immediately after they shall be assembled in Consequence of the first Elec- 
tion, they shall be divided as equally as may be into three Classes. The Seats of 
the Senators of the first Class shall be vacated at the Expiration of the second 
Year, of the second Class at the Expiration of the fourth Year, and of the third 
Class at the Expiration of the sixth Year, so that one-third may be chosen every 
second Year; and if Vacancies happen by Resignation, or otherwise, during the 

* The clause included in brackets is amended by the fourteenth amendment, second section. 

tThe first paragraph of section three of Article 1, of the Constitution of the United 
States, and so much of paragraph two of the same section as relates to filling vacancies are 
amended by the seventeenth amendment to the Constitution. 



504 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Recess of the Legislature of any State, the Executive thereof may make tem- 
porary Appointments- [until the next Meeting of the Legislature, which shall then 
fill such Vacancies]. 

(3) -^Q Person shall be a Senator who shall not have attained to the Age of 
thirty Years, and been nine Years a Citizen of the United States, and who shall 
not, when elected, be an Inhabitant of that State for which he shall be chosen. 

'■*'' The Vice President of the United States shall be President of the Senate, 
but shall have no Vote, unless they be equally divided. 

'■^^ The Senate shall chuse their other Officers, and also a President pro tem- 
pore, in the Absence of the Vice President, or when he shall exercise the Office of 
President of the United States. 

^^'> The Senate shall have the sole Power to try all Impeachments. When sit- 
ting for that Purpose, they shall be on Oath or Affirmation. When the President 
of the United States is tried, the Chief Justice shall preside: And no Person 
shall be convicted without the Concurrence of two thirds of the Members present. 

^''^ Judgment in Cases of Impeachment shall not extend further than to re- 
moval from Office, and disqualification to hold and enjoy any Office of honor, 
Trust or Profit under the United States : but the Party convicted shall neverthe- 
less be liable and subject to Indictment, Trial, Judgment and Punishment, ac- 
cording to Law. 

Section 4. '^^ The Times, Places and Manner of holding Elections for Sena- 
tors and Representatives, shall be prescribed in each State by the Legislature 
thereof ; but the Congress may at any time by Law make or alter such Regula- 
tions, except as to the Places of chusing Senators. 

^^^ The Congress shall assemble at least once in every Year, and such Meeting 
shall be on the first Monday in December, unless they shall by Law appoint a 
different Day. 

Section 5. <^^ Each House shall be the Judge of the Elections, Returns and 
Qualifications of its own Members, and a Majority of each shall constitute a 
Quorum to do Business; but a smaller Number may adjourn from day to day, 
and may be authorized to compel the Attendance of absent Members, in such 
Manner, and under such Penalties as each House may provide. 

'•^'> Each House may determine the Rules of its Proceedings, punish its Mem- 
bers for disorderly Behaviour, and, with the Concurrence of two thirds, expel a 
Member. 

'■^'> Each House shall keep a Journal of its Proceedings, and from time to time 
publish the same, excepting such Parts as may in their Judgment require Secrecy ; 
and the Yea's and Nays of the Members of either House on any question shall, at 
the Desire of one fifth of those Present, be entered on the Journal. 

^*'> Neither House, during the Session of Congress, shall, without the consent 
of the other, adjourn for more than three days, nor to any other Place than that 
in which the two Houses shall be sitting. 

Section 6. <^^ The Senators and Representatives shall receive a Compensa- 
tion for their Services, to be ascertained by Law, and paid out of the Treasury of 



APPENDIX 505 

the United States. They shall in all Cases, except Treason, Felony and Breach 
of the Peace, be privileged from Arrest during their Attendance at the Session of 
their respective Houses, and in going to and returning from the same ; and for 
any Speech or Debate in either House, they shall not be questioned in any other 
Place. 

'^' No Senator or Representative shall, during the Time for which he was 
elected, be appointed to any civil Office under the Authority of the United States, 
which shall have been created, or the Emoluments whereof shall have been en- 
creased during such time; and no Person holding any Office under the United 
States, shall be a Member of either House during his Continuance in Office. 

Section 7. <^> All Bills for raising Revenue shall originate in the House of 
Representatives ; but the Senate may propose or concur with Amendments as on 
other Bills. 

'^^ Every Bill which shall have passed the House of Representatives and the 
Senate, shall, before it become a Law, be presented to the President of the United 
States; If he approve he shall sign it, but if not he shall return it, with his Objec- 
tions to that House in which it shall have originated, who shall enter the Objec- 
tions at large on their Journal, and proceed to reconsider it. H after such Recon- 
sideration two thirds of that House shall agree to pass the Bill, it shall be sent, 
together with the Objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that House, it shall become a Law. 
But in all such Cases the Votes of both Houses shall be determined by Yeas and 
Nays, and the Names of the Persons voting for and against the Bill shall be 
entered on the Journal of each House respectively. If any Bill shall not be re- 
turned by the President within ten Days (Sundays excepted) after it shall have 
been presented to him, the Same shall be a Law, in like Manner as if he had 
signed it, unless the Congress by their Adjournment prevent its Return, in 
which Case it shall not be a Law. 

'^> Every Order, Resolution, or Vote to which the Concurrence of the Senate 
and House of Representatives may be necessary (except on a question of Ad- 
journment) shall be presented to the President of the United States; and before 
the Sam.e shall take Efifect, shall be approved by him. or being disapproved by him, 
shall be repassed by two thirds of the Senate and House of Representatives, ac- 
cording to the Rules and Limitations prescribed in the Case of a Bill. 

Section 8. The Congress shall have Power ^^> To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide for the common De- 
fence and general Welfare of the United States ; but all Duties, Imposts and 
Excises shall be uniform throughout the United States ; 

'^^ To borrow money on the credit of the United States ; 

^^^ To regulate Commerce with foreign Nations, and among the several States, 
and with the Indian Tribes ; 

<^' To establish an uniform Rule of Naturalization, and uniform Laws on the 
j subject of Bankruptcies throughout the United States ; 
I 



506 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

^^'> To coin Money, regulate the Value thereof, and of foreign Coin, and fix 
the Standard of Weights and Measures ; 

<^> To provide for the Punishment of counterfeiting the Securities and current 
Coin of the United States ; 

<''^ To establish Post Offices and post Roads; 

'■^'> To promote the Progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their respective 
Writings and Discoveries ; 

*^^ To constitute Tribunals inferior to the supreme Court; 

^^"^ To define and punish Piracies and Felonies committed on the high Seas, 
and Offenses against the Law of Nations ; 

^^^' To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water; 

<^2) To raise and support Armies, but no Appropriation of Money to that Use 
shall be for a longer Term than two Years ; 

<^^^ To provide and maintain a Navy; 

^^^^ To make Rules for the Government and Regulation of the land and naval 
Forces ; 

^^5^ To provide for calling forth the Militia to execute the Laws of the Union, 
suppress Insurrections and repel Invasions; - 

<^^^ To provide for organizing, arming, and disciplining the Militia, and for 
governing such Part of them as may be employed in the Service of the United 
States, reserving to the States respectively, the Appointment of the Officers, and 
the Authority of training the Militia according to the discipline prescribed by 
Congress ; 

^^■^^ To exercise exclusive Legislation in all Cases whatsoever, over such Dis- 
trict (not exceeding ten Miles square) as may, by Cession of particular States, 
and the Acceptance of Congress, become the seat of the Government of the United 
States, and to exercise like Authority over all Places purchased by the Consent 
of the Legislature of the State in which the Same shall be, for the Erection of 
Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings ; — And 

^^^^ To make all Laws which shall be necessary and proper for carrying into 
Execution the foregoing Powers, and all other Powers vested by this Constitution 
in the Government of the United States, or in any Department or Officer thereof. 

Section 9. ^^^ The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be prohibited by 
the Congress prior to the Year one thousand eight hundred and eight, but a tax 
or duty may be imposed on such Importation, not exceeding ten dollars for each 
Person. 

^^^ The Privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases of Rebellion or Invasion the public Safety may require it. 

<^^ No Bill of Attainder or ex post facto Law shall be passed. 



4 



APPENDIX 507 

* ^*'> No Capitation, or other direct, Tax shall be laid, unless in Proportion to 
the Census or Enumeration herein before directed to be taken. 

<^' No Tax or Duty shall be laid on Articles exported from any State. 

<^^ No Preference shall be given by any Regulation of Commerce or Reve- 
nue to the Ports of one State over those of another : nor shall Vessels bound to, 
or from, one State, be obliged to enter, clear, or pay Duties in another. 

'■'''> No Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law ; and a regular Statement and Account of the Re- 
ceipts and Expenditures of all public Money shall be published from time to time. 

<^^ No Title of Nobility shall be granted by the United States ; and no Person 
holding any Office of Profit or Trust under them, shall, without the Consent of 
the Congress, accept of any present. Emolument, Office, or Title, of any kind 
whatever, from any King, Prince, or foreign State. 

Section 10. ^^> No State shall enter into any Treaty, Alliance, or Confeder- 
ation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; 
make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass 
any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of 
Contracts, or grant any Title of Nobility. 

^^^ No State shall, without the Consent of the Congress, lay any Imposts or 
Duties on Imports or Exports, except what may be absolutely necessary for exe- 
cuting its inspection Laws : and the net Produce of all Duties and Imposts, laid 
by any State on Imports or Exports, shall be for the Use of the Treasury of the 
United States ; and all such Laws shall be subject to the Revision and Control 
of the Congress. 

'■^^ No State shall, without the Consent of Congress, lay any duty of Tonnage, 
keep Troops, or Ships of War in time of Peace, enter into any Agreement or 
Compact with another State, or with a foreign Power, or engage in War, unless 
actually invaded, or in such imminent Danger as will not admit of delay. 

Article II 

Section 1. <^^ The executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of four 
Years, and, together with the Vice President, chosen for the same Term, be 
elected, as follows : 

<2^ Each State shall appoint, in such Manner as the Legislature thereof may 
direct, a Number of Electors, equal to the whole Number of Senators and Rep- 
resentatives to which the State may be entitled in the Congress : but no Senator 
or Representative, or Person holding an Office of Trust or Profit under the 
United States, shall be appointed an Elector. 

t [The Electors shall meet in their respective States, and vote by Ballot for 
two persons, of whom one at least shall not be an Inhabitant of the same State 
with themselves. And they shall make a List of all the Persons voted for, and 
of the Number of Votes for each; which List they shall sign and certify, and 

* See XVI Amendment. 

t This clause has been superseded by the twelfth amendment. 



508 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

transmit sealed to the Seat of the Government of the United States, directed to 
the President of the Senate. The President of the Senate shall, in the Presence 
of the Senate and House of Representatives, open all the Certificates, and the 
Votes shall then be counted. The Person having the greatest Number of Votes 
shall be the President, if such Number be a Majority of the whole Number of 
Electors appointed ; and if there be more than one who have such Majority, and 
have an equal Number of Votes, then the House of Representatives shall imme- 
diately chuse by Ballot one of them for President; and if no Person have a 
Majority, then from the five highest on the List the said House shall in like 
Manner chuse the President. But in chusing the President, the Votes shall be 
taken by States, the Representation from each State having one Vote ; A quorum 
for this Purpose shall consist of a Member or Members from two thirds of the 
States, and a INIajority of all the States shall be necessary to a Choice. In every 
Case, after the Choice of the President, the Person having the greatest Number 
of Votes of the Electors shall be the Vice President. But if there should re- 
main two or more who have equal Votes, the Senate shall chuse from them by 
Ballot the ^'ice President.] 

*^^ The Congress may determine the Time of chusing the Electors, and the 
Day on which they shall give their Votes ; which Day shall be the same through- 
out the United States. 

(*^ No Person except a natural born Citizen, or a Citizen of the United States, 
at the time of the Adoption of this Constitution, shall be eligible to the Office 
of President ; neither shall any Person be eligible to that Office who shall not 
have attained to the Age of thirty five Years, and been fourteen Years a Resi- 
dent within the United States. 

'•^^ In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to discharge the Powers and Duties of the said Office, 
the Same shall devolve on the Vice President, and the Congress may by Law 
provide for the Case of Removal, Death, Resignation or Inability, both of the 
President and Vice President, declaring what Officer shall then act as President, 
and such Officer shall act accordingly, until the Disability be removed, or a 
President shall be elected. 

<®) The President shall, at stated Times, receive for his Services, a Compen- 
sation, which shall neither be encreased nor diminished during the Period for 
which he shall have been elected, and he shall not receive within that Period any 
other Emolument from the United States, or any of them. 

'■'''> Before he enter on the Execution of his Office, he shall take the following 
Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully 
execute the Office of President of the United States, and will to the best of my 
Ability, preserve, protect and defend the Constitution of the United States." 

Section 2. ^^^ The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the several States, when 
called into the actual Service of the United States ; he may require the Opinion, 
in writing, of the principal Officer in each of the executive Departments, upon 



APPENDIX 509 

any Subject relating to the Duties of their respective Offices, and he shall have 
Power to grant Reprieves and Pardons for Offences against the United States, 
except in Cases of Impeachment. 

<^^ He shall have Power, by and with the Advice and Consent of the Senate, 
to make Treaties, provided two thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, shall 
appoint Ambassadors, other pubHc Ministers and Consuls, Judges of the su- 
preme Court, and all other Officers of the United States, whose Appointments 
are not herein otherwise provided for, and which shall be established by Law: 
but the Congress may by Law vest the Appointment of such inferior Officers, 
as they think proper, in the President alone, in the Courts of Law, or in the 
Heads of Departments. 

<^^ The President shall have Power to fill up all Vacancies that may happen 
during the Recess of the Senate, by granting Commissions which shall expire at 
the End of their next Session. 

Section 3. He shall from time to time give to the Congress Information of 
the State of the Union, and recommend to their Consideration such Measures as 
he shall judge necessary and expedient; he may, on extraordinary Occasions, 
convene both Houses, or either of them, and in Case of Disagreement between 
them, with Respect to the Time of Adjournment, he may adjourn them to such 
Time as he shall think proper; he shall receive Ambassadors and other public 
Ministers; he shall take Care that the Laws be faithfully executed, and shall 
Commission all the Officers of the United States. 

Section 4. The President, Vice President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, and Conviction 
of. Treason, Bribery, or other high Crimes and IMisdemeanors. 

Article III 

Section L The judicial Power of the United States, shall be vested in one 
supreme Court, and in such inferior Courts as the Congress may from time to 
time ordain and establish. The Judges, both of the supreme and inferior Courts, 
shall hold their Offices during good Behaviour, and shall, at stated Times, re- 
ceive for their Services, a Compensation, which shall not be diminished during 
their Continuance in Office. 

Section 2. ^^' The judicial Power shall extend to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their Authority; — to all Cases 
affecting Ambassadors, or other public Ministers and Consuls ; — to all Cases 
of admiralty and maritime Jurisdiction; — to Controversies to which the United 
States shall be a Party ; — to Controversies between two or more States ; — be- 
tween a State and Citizens of another State; — between Citizens of different 
States; — between Citizens of the same State claiming Lands under Grants of 
different States, and between a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 



510 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

^^^ In all Cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have original 
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall 
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and 
under such Regulations as the Congress shall make. 

^^' The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ; 
and such Trial shall be held in the State where the said Crimes shall have been 
committed ; but when not committed within any State, the Trial shall be at such 
Place or Places as the Congress may by Law have directed. 

Section 3. ^^^ Treason against the United States, shall consist only in levy- 
ing War against them, or in adhering to their Enemies, giving them Aid and 
Comfort. No Person shall be convicted of Treason unless on the Testimony of 
two Witnesses to the same overt Act, or on Confession in open Court. 

<^^ The Congress shall have Power to declare the Punishment of Treason, but 
no Attainder of Treason shall work Corruption of Blood, or Forfeiture except 
during the Life of the Person attainted. 

Article IV 

Section 1. Full Faith and Credit shall be given in each State to the public 
Acts, Records, and judicial Proceedings of every other State. And the Con- 
gress may by general Laws prescribe the Manner in which such Acts, Records 
and Proceedings shall be proved, and the Effect thereof. 

Section 2. ^^^ The Citizens of each State shall be entitled to all Privileges 
and Immunities of Citizens in the several States. 

<^> A Person charged in any State with Treason, Felony, or other Crime, who 
shall flee from Justice, and be found in another State, shall on Demand of the 
executive Authority of the State from which he fled, be delivered up, to be re- 
moved to the State having jurisdiction of the Crime^ 

'■^'> No Person held to Service or Labour in one State, under the Laws thereof, 
escaping into another, shall, in Consequence of any Law or Regulation therein, 
be discharged from such Service or Labour, but shall be delivered up on Claim 
of the Party to whom such Service or Labour may be due. 

Section 3. ^^^ New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the Jurisdiction of any other 
State ; nor any State be formed by the Junction of two or more States, or Parts 
of States, without the Consent of the Legislatures of the States concerned as well 
as of the Congress. 

'•-'' The Congress shall have Power to dispose of and make all needful Rules 
and Regulations respecting the Territory or other Property belonging to the 
United States ; and nothing in this Constitution shall be so construed as to Preju- 
dice any Claims of the United States, or of any particular State. 

Section 4. The United States shall guarantee to every State in this Union 
a Republican Form of Government, and shall protect each of them against Inva- 



APPENDIX 511 

sion; and on Application of the Legislature, or of the Executive (when the 
Legislature cannot be convened) against domestic Violence. 

Article V 

The Congress, whenever two-thirds of both Houses shall deem it necessary, 
shall propose Amendments to this Constitution, or, on the AppHcation of the 
Legislatures of two thirds of the several States, shall call a Convention for pro- 
posing Amendments, which, in either Case, shall be valid to all Intents and Pur- 
poses, as part of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by Conventions in three fourths thereof, as the 
one or the other Mode of Ratification may be proposed by the Congress; Pro- 
vided that no Amendment which may be made prior to the Year One thousand 
eight hundred and eight shall in any Manner afifect the first and fourth Clauses 
in the Ninth Section of the first Article ; and that no State, without its Consent, 
shall be deprived of its equal Suffrage in the Senate. 

Article VI 

<^^ All Debts contracted and Engagements entered into, before the Adoption 
of this Constitution, shall be as valid against the United States under this Con- 
stitution, as under the Confederation. 

<2> This Constitution, and the Laws of the United States which shall be made 
in Pursuance thereof ; and all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme Law of the Land ; and the 
Judges in every State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. 

^'^ The Senators and Representatives before mentioned, and the Members of 
the several State Legislatures, and all executive and judicial Officers, both of the 
United States and of the several States, shall be bound by Oath or Affirmation, 
to support this Constitution ; but no religious Test shall ever be required as a 
Qualification to any Office or public Trust under the United States. 

Article VII 

The Ratification of the Conventions of nine States, shall be sufficient for the 
Establishment of this Constitution between the States so ratifying the Same. 

Done in Convention by the Unanimous Consent of the States present the 
Seventeenth Day of September in the Year of our Lord one thousand seven 
hundred and Eighty seven, and of the Independence of the United States of 
America the Twelfth. IN WITNESS whereof We have hereunto subscribed 
our Names. 

G".: WASHINGTON 
Presidt and deputy from Virginia 



512 THE UNITED STATES." A STUDY IN INTERNATIONAL ORGANIZATION 



John Langdon 



New Hampshire. 

Nicholas Oilman 



Nathaniel Gorham 



Massachusetts. 

RuFUS King 



Wm. Same. Johnson 



Connecticut. 

Roger Sherman 



Alexander Hamilton 



New York. 



Wil: Livingston 
David Brearley 



New Jersey. 

Wm. Patterson 
Jona: Dayton 



B. Franklin 
Robt. Morris 
Thos. Fitzsimons 
James Wilson 



Pennsylvania. 

Thomas Mifflin 
Geo. Clymer 
Jared Ingersoll 
Gouv Morris 



Geo: Re.\d 
John Dickinson 
Jaco: Broom 



Delaware. 



Gunning Bedford Jun 
Richard Bassett 



James McHenry 
Danl. Carroll 



Maryland. 

Dan of St Thos Jenifer 



John Blair • 



Virginia. 

James Madison Jr. 



Wm. Blount 
Hu Williamson 



North Carolina. 

Richd Dobbs Spaight 



513 



j. rutledge 
Charles Pinckney 



South Carolina. 

Charles Cotesworth Pinckney 
Pierce Butler 



William Few 



Georgia. 

Abr Baldwin 



Attest 



WILLIAM JACKSON Secretary 



B. AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY 

OF THE UNITED STATES NORTHWEST 

OF THE RIVER OHIO ^ 

Section 1. Be it ordained by the United States in Congress assembled, 
That the said territory, for the purpose of temporary government, be one district, 
subject, however, to be divided into two districts, as future circumstances may, 
in the opinion of Congress, make it expedient. 

Sec. 2. Be it ordained by the authority aforesaid, That the estates both of 
resident and non-resident proprietors in the said territory, dying intestate, shall 
descend to, and be distributed among, their children and descendants of a deceased 
child in equal parts, the descendants of a deceased child or grandchild to take 
the share of their deceased parent in equal parts among them; and where there 
shall be no children or descendants, then in equal parts to the next of kin, in 
equal degree ; and among collaterals, the children of a deceased brother or sister 
of the intestate shall have, in equal parts among them, their deceased parent's 
share ; and there shall, in no case, be a distinction between kindred of the whole 
and half blood; saving in all cases to the widow of the intestate, her third part 
of the real estate for life, and one-third part of the personal estate; and this 
law relative to descents and dower, shall remain in full force until altered by the 
legislature of the district. And until the governor and judges shall adopt laws 
as hereinafter mentioned, estates in the said territory may be devised or be- 
queathed by wills in writing, signed and sealed by him or her in whom the estate 
may be (being of full age), and attested by three witnesses; and real estates 
may be conveyed by lease and release, or bargain and sale, signed, sealed, and 
delivered by the person, being of full age, in whom the estate may be, and at- 
tested by two witnesses, provided such wills be duly proved, and such conveyances 
be acknowledged, or the execution thereof duly proved, and be recorded within 
one year after proper magistrates, courts, and registers, shall be appointed for 
that purpose; and personal property may be transferred by delivery, saving, 
however, to the French and Canadian inhabitants, and other settlers of the Kas- 
kaskies, Saint Vincents, and the neighboring villages, who have heretofore pro- 
fessed themselves citizens of Virginia, their laws and customs now in force among 
them, relative to the descent and conveyance of property. 

Sec. 3. Be it ordained by the authority aforesaid. That there shall be 
appointed, from time to time, by Congress, a governor, whose commission shall 
continue in force for the term of three years, unless sooner revoked by Congress ; 
he shall reside in the district, and have a freehold estate therein, in one thousand 
acres of land, while in the exercise of his office. 

Sec. 4. There shall be appointed from time to time, by Congress, a secre- 

"^ Revised Statutes of the United States, 2d ed., 1878, pp. 13-16. 

514 



1 



APPENDIX 515 

tary, whose commission shall continue in force for four years, unless sooner 
revoked ; he shall reside in the district, and have a freehold estate therein, in five 
hundred acres of land, while in the exercise of his office. It shall be his duty 
to keep and preserve the acts and laws passed by the legislature, and the public 
records of the district, and the proceedings of the governor in his executive 
department, and transmit authentic copies of such acts and proceedings every six 
months to the Secretary of Congress. There shall also be appointed a court, 
to consist of three judges, any two of whom to form a court, who shall have a 
common-law jurisdiction, and reside in the district, and have each therein a 
freehold estate, in five hundred acres of land, while in the exercise of their 
offices ; and their commissions shall continue in force during good behavior. 

Sec. 5. The governor and judges, or a majority of them, shall adopt and 
publish in the district such laws of the original States, criminal and civil, as may 
be necessary, and best suited to the circumstances of the district, and report 
them to Congress from time to time, which laws shall be in force in the district 
until the organization of the general assembly therein, unless disapproved of by 
Congress; but afterwards the legislature shall have authority to alter them as 
they shall think fit. 

Sec. 6. The governor, for the time being, shall be commander-in-chief of 
the militia, appoint and commission all officers in the same below the rank of 
general officers ; all general officers shall be appointed and commissioned by 
Congress. 

Sec. 7. Previous to the organization of the general assembly the governor 
shall appoint such magistrates, and other civil officers, in each county or township, 
as he shall find necessary for the preservation of the peace and good order in 
the same. After the general assembly shall be organized the powers and duties 
of magistrates and other civil officers shall be regulated and defined by the said 
assembly; but all magistrates and other civil officers, not herein otherwise directed, 
shall, during the continuance of this temporary government, be appointed by the 
governor. 

Sec. 8. For the prevention of crimes and injuries, the laws to be adopted 
or made shall have force in all parts of the district, and for the execution of 
process, criminal and civil, the governor shall make proper divisions thereof; 
and he shall proceed, from time to time, as circumstances may require, to lay 
out the parts of the district in which the Indian titles shall have been extinguished, 
into counties and townships, subject, however, to such alterations as may there- 
after be made by the legislature. 

Sec. 9. So soon as there shall be five thousand free male inhabitants, of full 
age, in the district, upon giving proof thereof to the governor, they shall receive 
authority, with time and place, to elect representatives from their counties or 
townships, to represent them in the general assembly : Provided, That for every 
five hundred free male inhabitants there shall be one representative, and so on, 
progressively, with the number of free male inhabitants, shall the right of repre- 
sentation increase, until the number of representatives shall amount to twenty-five; 



516 THE UNITED STATES." A STUDY IN INTERNATIONAL ORGANIZATION 

after which the number and proportion of representatives shall be regulated by 
the legislature: Provided, That no person be eligible or qualified to act as a 
representative, unless he shall have been a citizen of one of the United States 
three years, and be a resident in the district, or unless he shall have resided in the 
district three years; and, in either case, shall likewise hold in his own right, in 
fee-simple, two hundred acres of land within the same: Provided also, That a 
freehold in fifty acres of land in the district, having been a citizen of one of the 
States, and being resident in the district, or the like freehold and two years' 
residence in the district, shall be necessary to qualify a man as an elector of a 
representative. 

Sec. 10. The representatives thus elected shall serve for the term of two 
years; and in case of the death of a representative, or removal from office, the 
governor shall issue a writ to the county or township, for which he was a member, 
to elect another in his stead, to serve for the residue of the term. 

Sec. 11. The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative council shall 
consist of five members, to continue in office five years, unless sooner removed 
by Congress ; any three of whom to be a quorum ; and the members of the council 
shall be nominated and appointed in the following manner, to wit: As soon as 
representatives shall be elected the governor shall appoint a time and place for 
them to meet together, and when met they shall nominate ten persons, resident 
in the district, and each possessed of a freehold in five hundred acres of land, 
and return their names to Congress, five of whom Congress shall appoint and 
commission to serve as aforesaid ; and whenever a vacancy shall happen in the 
council, by death or removal from office, the house of representatives shall 
nominate two persons qualified as aforesaid, for each vacancy, and return their 
names to Congress, one of whom Congress shall appoint and commission for the 
residue of the term ; and every five years, four months at least before the expira- 
tion of the time of service of the members of the council, the said house shall 
nominate ten persons, qualified as aforesaid, and return their names to Congress, 
five of whom Congress shall appoint and commission to serve as members of the 
council five years, unless sooner removed. And the governor, legislative council, 
and house of representatives shall have authority to make laws in all cases for 
the good government of the district, not repugnant to the principles and articles 
in this ordinance established and declared. And all bills, having passed by a 
majority in the house, and by a majority in the council, shall be referred to the 
governor for his assent; but no bill, or legislative act whatever, shall be of any 
force without his assent. The governor shall have power to convene, prorogue, 
and dissolve the general assembly when, in his opinion, it shall be expedient. 

Sec. 12. The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an oath or affirmation 
of fidelity, and of office ; the governor before the President of Congress, and all 
other officers before the governor. As soon as a legislature shall be formed in 
the district, the council and house assembled, in one room, shall have authority, by 






APPENDIX 517 

joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with 
a right of debating, but not of voting, during this temporary government. 

Sec. 13. And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and constitutions, 
are erected ; to fix and establish those principles as the basis of all laws, constitu- 
tions, and governments, which forever hereafter shall be formed in the said 
territory ; to provide, also, for the establishment of States, and permanent govern- 
ment therein, and for their admission to a share in the Federal councils on an 
equal footing with the original States, at as early periods as may be consistent with 
the general interest. 

Sec. 14. It is hereby ordained and declared, by the authority aforesaid, 
that the following articles shall be considered as articles of compact, between 
the original States and the people and States in the said territory, and forever 
remain unalterable, unless by common consent, to wit : 

ARTICLE I 

No person, demeaning himself in a peaceable and orderly manner, shall ever 
be molested on account of his mode of worship, or religious sentiments, in the 
said territories. 

ARTICLE II 

The inhabitants of the said territory shall always be entitled to the benefits of 
the writs of habeas corpus, and of the trial by jury; of a proportionate repre- 
sentation of the people in the legislature, and of judicial proceedings according to 
the course of the common law. All persons shall be bailable, unless for capital 
offenses, where the proof shall be evident, or the presumption great. All fines 
shall be moderate; and no cruel or unusual punishment shall be inflicted. No 
man shall be deprived of his liberty or property, but by the judgment of his peers, 
or the law of the land, and should the public exigencies make it necessary, for the 
common preservation, to take any person's property, or to demand his particular 
services, full compensation shall be made for the same. And, in the just preserva- 
tion of rights and property, it is understood and declared, that no law ought 
ever to be made or have force in the said territory, that shall, in any manner 
whatever, interfere with or affect private contracts, or engagements, bona fide, 
and without fraud previously formed. 

ARTICLE III 

Religion, morality, and knowledge being necessary to good government and the 
happiness of mankind, schools and the means of education shall forever be 
encouraged. The utmost good faith shall always be observed towards the 
Indians ; their lands and property shall never be taken from them without their 
consent ; and in their property, rights, and liberty they never shall be invaded or 
disturbed, unless in just and lawful wars authorized by Congress; but laws 



518 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

founded in justice and humanity, shall, from time to time, be made, for preventing 
wrongs being done to them, and for preserving peace and friendship with them. 

ARTICLE IV 

The said territory, and the States which may be formed therein, shall forever 
remain a part of this confederacy of the United States of America, subject to 
the Articles of Confederation, and to such alterations therein as shall be con- 
stitutionally made ; and to all the acts and ordinances of the United States in 
Congress assembled, conformable thereto. The inhabitants and settlers in the 
said territory shall be subject to pay a part of the Federal debts, contracted, or 
to be contracted, and a proportional part of the expenses of government to be 
apportioned on them by Congress, according to the same common rule and 
measure by which apportionments thereof shall be made on the other States ; 
and the taxes for paying their proportion shall be laid and levied by the authority 
and direction of the legislatures of the district, or districts, or new States, as in 
the original States, within the time agreed upon by the United States in Congress 
assembled. The legislatures of those districts, or new States, shall never interfere 
with the primary disposal of the soil by the United States in Congress assembled, 
nor with any regulations Congress may find necessary for securing the title in 
such soil to the bona fide purchasers. No tax shall be imposed on lands the 
property of the United States; and in no case shall non-resident proprietors be 
taxed higher than residents. The navigable waters leading into the Mississippi 
and Saint Lawrence, and the carrying places between the same, shall be common 
highways, and forever free, as well to the inhabitants of the said territory as to 
the citizens of the United States, and those of any other States that may be 
admitted into the confederacy, without any tax, impost, or duty therefor. 

ARTICLE V 

There shall be formed in the said territory not less than three nor more than 
five States ; and the boundaries of the States, as soon as Virginia shall alter her 
act of cession and consent to the same, shall become fixed and established as 
follows, to wit : The western State, in the said territory, shall be bounded by the 
Mississippi, the Ohio, and the Wabash Rivers ; a direct line drawn from the 
Wabash and Post Vincents, due north, to the territorial line between the United 
States and Canada ; and by the said territorial line to the Lake of the Woods 
and Mississippi. The middle State shall be bounded by the said direct line, the 
Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line drawn 
due north from the mouth of the Great Miami to the said territorial line, and 
by the said territorial line. The eastern State shall be bounded by the last-rnen- 
tioned direct line, the Ohio, Pennsylvania, and the said territorial line : Provided, 
hoivevcr, And it is further understood and declared, that tlie boundaries of these 
three States shall be subject so far to be altered, that, if Congress shall hereafter 
find it expedient, they shall have authority to form one or two States in that part 



APPENDIX 519 

of the said territory which lies north of an east and west line drawn through 
the southerly bend or extreme of Lake Michigan. And whenever any of the 
said States shall have sixty thousand free inhabitants therein, such State shall be 
admitted, by its delegates, into the Congress of the United States, on an equal 
footing with the original States, in all respects whatever; and shall be at liberty 
to form a permanent constitution and State government : Provided, The con- 
stitution and government, so to be formed, shall be republican, and in conformity 
to the principles contained in these articles, and so far as it can be consistent 
with the general interest of the confederacy, such admission shall be allowed at 
an earlier period, and when there may be a less number of free inhabitants in the 
State than sixty thousand. 

ARTICLE VI 

There shall be neither slavery nor involuntary servitude in the said territory, 
otherwise than in the punishment of crimes, whereof the party shall have been 
duly convicted : Provided always, That any person escaping into the same, from 
whom labor or service is lawfully claimed in any one of the original States, such 
fugitive may be lawfully reclaimed, and conveyed to the person claiming his or 
her labor or service as aforesaid. 

Be it ordained by the authority aforesaid, That the resolutions of the 23d 
of April, 1784, relative to the subject of this ordinance, be, and the same are 
hereby, repealed, and declared null and void. 

Done by the United States, in Congress assembled, the 13th day of July, in 
the year of our Lord 1787, and of their sovereignty and independence the twelfth. 



C. DOCUMENTS FROM WHICH THE CONSTITUTION WAS 
EVOLVED. 

I. TEXT OF MR. RANDOLPH'S RESOLUTIONS, PRESENTED TO 
THE CONVENTION MAY 29, 17^,7} 

1. Resolved that the articles of Confederation ought to be so corrected & en- 
larged as to accomplish the objects proposed by their institution; namely, "com- 
mon defence, security of liberty and general welfare." 

2. Res*^. therefore that the rights of suffrage in the National Legislature ought 
to be proportioned to the Quotas of contribution, or to the number of free in- 
habitants, as the one or the other rule may seem best in different cases. 

3. Res'*, that the National Legislature ought to consist of two branches. 

4. Res^. that the members of the first branch of the National Legislature 
ought to be elected by the people of the several States every for the term 
of ; to be of the age of years at least, to receive liberal stipends by 
which they may be compensated for the devotion of their time to public serv- 
ice; to be ineligible to any office established by a particular State, or under 
the authority of the United States, except those peculiarly belonging to the func- 
tions of the first branch, during the term of service, and for the space of 
after its expiration ; to be incapable of re-election for the space of after 
the expiration of their term of service, and to be subject to recall. 

5. ResoP. that the members of the second branch of the National Legislature 
ought to be elected by those of the first, out of a proper number of persons nomi- 
nated by the individual Legislatures, to be of the age of years at least; to 
hold their offices for a term sufficient to ensure their independency, to receive 
liberal stipends, by which they may be compensated for the devotion of their time 
to the public service ; and to be ineligible to any office established by a particular 
State, or under the authority of the United States, except those peculiarly be- 
longing to the functions of the second branch, during the term of service, and 
for the space of after the expiration thereof. 

6. Resolved that each branch ought to possess the right of originating Acts; 
that the National Legislature ought to be empowered to enjoy the Legislative 
Rights vested in Congress by the Confederation & moreover to legislate in all 
cases to which the separate States are incompetent, or in which the harmony of 
the United States may be interrupted by the exercise of individual Legislation; 
to negative all laws passed by the several States, contravening in the opinion of 
the National Legislature the articles of Union; and to call forth the force of 
the LTnion ag«'. any member of the Union failing to fulfill its duty under the 
articles thereof. 

1 Documentary History of the Constitution, Vol. iii, pp. 17-20. 

520 



APPENDIX 521 

7. Res'', that a National Executive be instituted; to be chosen by the Na- 
tional Legislature for the term of years, to receive punctually at stated 
times, a fixed compensation for the services rendered, in which no increase or 
diminution shall be made so as to affect the Magistracy, existing at the time of 
increase or diminution, and to be ineligible a second time ; and that besides a gen- 
eral authority to execute the National laws, it ought to enjoy the Executive rights 
vested in Congress by the Confederation. 

8. Res'*, that the Executive and a convenient number of the National Ju- 
diciary, ought to compose a Council of revision with authority to examine every 
act of the National Legislature before it shall operate, & every act of a particular 
Legislature before a Negative thereon shall be final ; and that the dissent of the 
said Council shall amount to a rejection, unless the Act of the National Legis- 
lature be again passed, or that of a particular Legislature be again negatived 
by of the members of each branch. 

9. Res*^. that a National Judiciary be established to consist of one or more 
supreme tribunals, and of inferior tribunals to be chosen by the National Legis- 
lature, to hold their offices during good behaviour; and to receive punctually 
at stated times fixed compensation for their services, in which no increase or 
diminution shall be made so as to affect the persons actually in office at the time 
of such increase or diminution, that the jurisdiction of the inferior tribunals 
shall be to hear & determine in the first instance, and of the supreme tribunal to 
hear and determine in the dernier resort all piracies, & felonies on the high seas, 
captures from an enemy; cases in which foreigners or citizens of other States 
applying to such jurisdictions may be interested, or which respect the collection 
of the National revenue; impeachments of any National officers, and questions 
which may involve the national peace and harmony. 

10. Resolv*". that provision ought to be made for the admission of States law- 
fully arising within the limits of the United States, whether from a voluntary 
junction of Government & Territory or otherwise, with the consent of a number 
of voices in the National legislature less than the whole. 

11. Res'*, that a Republican Government & the territory of each State, except 
in the instance of a voluntary junction of Government & territory, ought to be 
guaranteed by the United States to each State 

12. Res", that provision ought to be made for the continuance of Congress 
and their authorities and privileges, until 'a given day after the reform of the 
articles of Union shall be adopted, and for the completion of all their engage- 
ments. 

13. Res"^. that provision ought to be made for the amendment of the Articles 
of Union whensoever it shall seem necessary, and that the assent of the National 
Legislature ought not to be required thereto. 

14. Res'*, that the Legislative Executive & Judiciary powers within the several 
States ought to be bound by oath to support the articles of Union. 

15. Res*^. that the amendments which shall be offered to the Confederation, 
by the Convention ought at a proper time, or times, after the approbation of 



522 THE UNITED STATES! A STUDY IN INTERNATIONAL ORGANIZATION 

Congress to be submitted to an assembly or assemblies of Representatives, recom- 
mended by the several Legislatures to be expressly chosen by the people, to con- 
sider & decide thereon. 

II. OUTLINE OF THE PINCKNEY PLAN PRESENTED TO THE 
CONVENTION MAY 29, 1787.^ 

I. A Confederation between the free and independent States of N. H. etc. is 
hereby solemnly made uniting them together under one general superintending 
Government for their common Benefit and for their Defense and Security against 
all Designs and Leagues that may be injurious to their Interests and against all 
Forc[e] [ ?] and Attacks offered to or made upon them or any of them 

2 The Stile 

3 Mutual Intercourse — Community of Privileges — Surrender of Criminals 
— Faith to Proceedings etc. 

4 Two Branches of the Legislature — Senate — House of Delegates — to- 
gether the U. S. in Congress assembled 

H. D. to consist of one Member for every thousand Inhabitants f of Blacks 
included 

Senate to be elected from four Districts — to serve by Rotation of four 
Years — to be elected by the H. D. either from among themselves or the People 
at large 

5 The Senate and H. D. shall by joint Ballot annually [septennially] chuse the 
Presid'. U. S. from among themselves or the People at large. — In the Presd\ the 
executive authority of the U. S. shall be vested. — His Powers and Duties — He 
shall have a Right to advise with the Heads of the different Departments as his 
Council 

6 Council of Revision, consisting of the Preside S. for for. Affairs, S. of 
War, Heads of the Departments of Treasury and Admiralty or any two of them 
tog"" w* the Presid'. 

7 The Members of S. and H. D. shall each have one Vote, and shall be paid 
out of the common Treasury. 

8 The Time of the Election of the Members of the H. D. and of the Meeting 
of U. S. in C. assembled. 

9 No State to make Treaties — lay interfering Duties — keep a naval or land 
Force Militia excepted to be disciplined etc according to the Regulations of 
the U. S. 

1 This outline of the so-called Pinckney plan laid before the Federal Convention on 
May 29, 1787, immediately after that of Mr. Randolph, was found by Professor Andrew C. 
McLaughlin among the Wilson papers deposited in the Pennsylvania Historical Society and 
identified by him as in James Wilson's handwriting. It is believed to be a summary made 
by Mr. Wilson either during the reading of the Pinckney plan upon its introduction, or from 
the original draft referred to the Committee of Detail, of which Mr. Wilson was a member. 
For fuller particulars concerning the draft, see J. Franklin Jameson, Studies in the Federal 
Constitution, Anmial Report of the American Historical Association, 1902, Vol. i, pp. 130-1. 

Plan here is reprinted from The American Historical Review, July, 1904, Vol. IX, pp. 
741-747. 



i 



APPENDIX 523 

10. Each State retains its Rights not expressly delegated — But no Bill of 
the Legislature of any State shall become a law till it shall have been laid before 
S. and H. D. in C. assembled and received their Approbation. 

11. The exclusive Power of S. and H. D. in C. assembled 

12. The S. and H. D. in C. ass. shall have exclusive Power of regulating trade 
and levying Imposts — Each State may lay Embargoes in Times of Scarcity 

13 ^ of estabHshing Post-Offices 

14. S. and H. D. in C. ass. shall be the last Resort on Appeal in Disputes be- 
tween two or more States; which Authority shall be exercised in the following 
Manner etc 

15. S. and H. D. in C. ass. shall institute offices and appoint officers for the De- 
partments of for. Affairs, War, Treasury and Admiralty. 

They shall have the exclusive Power of declaring what shall be Treason and 
Misp. of Treason ag'. U. S. — and of instituting a federal judicial Court, to which 
an Appeal shall be allowed from the judicial Courts of the several States in all 
Causes wherein Questions shall arise on the Construction of Treaties made by 
U. S. — or on the Laws of Nations — or on the Regulations of U. S. concerning 
Trade and Revenue — or wherein U. S. shall be a Party — The Court shall con- 
sist of Judges to be appointed during good Behaviour — S and H. D. in C. 
ass. shall have the exclusive Right of instituting in each State a Court of Ad- 
miralty, and appointing the Judges etc of the same for all maritime Causes which 
may arise therein respectively 

16. S and H. D. in C. Ass shall have the exclusive Right of coining Money — 
regulating its Alloy and Value — fixing the Standard of Weights and Measures 
throughout U. S. 

17. Points in which the Assent of more than a bare Majority shall be necessary. 
18 Impeachments shall be by the H. D. before the Senate and the Judges of 

the federal judicial Court. 

19. S. and H. D. in C. ass. shall regulate the Militia thro' the U. S. 

20. Means of enforcing and compelling the Payment of the Quota of each 
State. 

21. Manner and Conditions of admitting new States. 

22. Power of dividing annexing and consolidating States, on the Consent and 
Petition of such States. 

23. The assent of the Legislature of States shall be sufficient to invest 
future additional Powers in U. S. in C. ass. and shall bind the whole Confederacy. 

24. The Articles of Confederation shall be inviolably observed, and the Union 
shall be perpetual : unless altered as before directed 

25. The said States of N. H. etc guarrantee mutually each other and their 
Rights against all other Powers and against all Rebellion etc. 



11 



524 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

III. REPORT OF THE COMMITTEE OF THE WHOLE ON MR. RAN- 
DOLPH'S PROPOSITIONS, JUNE 13, 1787.^ 

1. Res*, that it is the opinion of this Committee that a National Governm'. 
ought to be estabHshed, consisting of a supreme Legislative, Executive & Ju- 
diciary. 

2. ResoP. that the National Legislature ought to consist of two branches. 

3. Res*, that the members of the first branch of the National Legislature ought 
to be elected by the people of the several States for the term of three years, to 
receive fixed Stipends by which they may be compensated for the devotion of 
their time to public service, to be paid out of the National Treasury: to be 
ineligible to any office established by a particular State, or under the authority 
of the U. States, (except those peculiarly belonging to the functions of the first 
branch), during the term of service, and under the national Government for the 
Space of one year after its expiration. 

4. Res*, that the members of the second branch of the Nat'. Legislature ought 
to be chosen by the individual Legislatures, to be of the age of 30 years at least, 
to hold their offices for a term sufficient to ensure their independency, namely, 
seven years, to receive fixed stipends by which they may be compensated for the 
devotion of their time to public service to be paid out of the National Treasury ; 
to be ineligible to any office established by a particular State, or under the au- 
thority of the U. States, (except those peculiarly belonging to the functions of 
the second branch) during the term of service, and under the Nat'. Gov*, for the 
space of one year after its expiration. 

5. Res*, that each branch ought to possess the right of originating Acts 

6. Res*, that the Nat'. Legislature ought to be empowered to enjoy the Legis- 
lative rights vested in Cong*, by the Confederation, and moreover to legislate in 
all cases to which the separate States are incompetent ; or in which the harmony 
of the U. S. may be interrupted by the exercise of individual legislation; to 
negative all laws passed by the several States contravening in the opinion of the 
National Legislature the articles of Union, or any treaties subsisting under the 
authority of the Union. 

7. Res*, that the rights of suflfrage in the P'. branch of the National Legis- 
lature, ought not to be according to the rule established in the articles of confeder- 
ation but according to some equitable ratio of representation, namely, in pro- 
portion to the whole number of white & other free citizens & inhabitants, of every 
age sex and condition, including those bound to servitude for a term of years, 
& three fifths of all other persons, not comprehended in the foregoing descrip- 
tion, except Indians not paying taxes in each State : 

8. Resolved that the right of sufifrage in the 2*. branch of the National Legis- 
lature ought to be according to the rule established for the first. 

9. Resolved that a National Executive be instituted to consist of a single 
person, to be chosen by the Nat'. Legislature for the term of seven years, with 



Documentary History of the Constitution, Vol. iii, pp. 120-3. 



I 



APPENDIX 525 

power to carry into execution the national laws, to appoint to offices in cases not 
otherwise provided for — to be ineligible a second time, & to be removeable on 
impeachment and conviction of malpractices or neglect of duty — to receive a 
fixed stipend by which he may be compensated for the devotion of his time to 
public service to be paid out of the national Treasury. 

10. Resol*^. that the nat'. Executive shall have a right to negative any Legis- 
lative Act, which shall not be afterwards passed unless by two thirds of each 
branch of the National Legislature. 

IL ResoF. that a Nat'. Judiciary be established, to consist of one supreme 
tribunal, the Judges of which to be appointed by the 2*^. branch of the Nat'. Legis- 
lature, to hold their offices during good behaviour, & to receive punctually at 
stated times a fixed compensation for their services, in which no increase or 
diminution shall be made, so as to affect the persons actually in office at the time 
of such increase or diminution. 

12. Resol". that the Nat'. Legislature be empowered to appoint inferior 
Tribunals. 

13. Res'", that the jurisdiction of the Nat'. Judiciary shall extend to all cases 
which respect the collection of the Nat', revenue, impeachments of any Nat'. 
Officers, and questions which involve the national peace & harmony. 

14. Res'*, that provision ought to be made for the admission of States law- 
fully arising within the limits of the U. States, whether from a voluntary junc- 
tion of Government & territory or otherwise, with the consent of a num.ber of 
voices in the Nat'. Legislature less than the whole. 

15. Res'', that provision ought to be made for the continuance of Congress 
and their authorities and privileges untill a given day after the reform of the arti- 
cles of Union shall be adopted and for the completion of all their engagements. 

16. Res'', that a Republican Constitution & its existing laws ought to be guar- 
anteed to each State by the U. States. 

17. Res'", that provision ought to be made for the amendment of the Articles 
of Union whensoever it shall seem necessary. 

18. Res^. that the Legislative, Executive & Judiciary powers within the sev- 
eral States ought to be bound by oath to support the articles of Union, 

19. Res", that the amendments which shall be offered to the confederation by 
the convention ought at a proper time or times after the approbation of Cong', to 
be submitted to an Assembly or Assemblies recommended by the several Legis- 
latures to be expressly chosen by the people to consider and decide thereon. 



IV. TEXT OF THE NEW JERSEY PLAN, MOVED BY MR. PATTER- 
SON JUNE 15, 1787.^ 

1. Res", that the articles of Confederation ought to be so revised, corrected, 
& enlarged, as to render the federal Constitution adequate to the exigences of 
Government, & the preservation of the Union. 

^Documentary History, Vol. iii, pp. 125-8. 



526 THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 

2. Res*, that in addition to the powers vested in the U. States in Congress, 
by the present existing articles of Confederation, they be authorized to pass acts 
for raising a revenue, by levying a duty or duties on all goods or merchandizes 
of foreign growth or manufacture, imported into any part of the U. States, by 
Stamps on paper, vellum or parchment, and by a postage on all letters or pack- 
ages passing through the general post-OfBce, to be applied to such federal purposes 
as they shall deem proper & expedient ; to make rules & regulations for the col- 
lection thereof ; and the same from time to time, to alter & amend in such manner 
as they shall think proper : to pass Acts for the regulation of trade & commerce 
as well with foreign nations as with each other : provided that all punishments, 
fines, forfeitures & penalties to be incurred for contravening such acts rules and 
regulations shall be adjudged by the Common law Judiciaries of the State in 
which any oflfense contrary to the true intent & meaning of such Acts rules & 
regulations shall have been committed or perpetrated, with liberty of commencing 
in the first instance all suits & prosecutions for that purpose in the superior 
Common law Judiciary in such State, subject nevertheless, for the correction of 
all errors, both in law & fact in rendering judgment, to an appeal to the Judiciary 
of the U. States. 

3. Res*, that whenever requisitions shall be necessary, instead of the rule 
for making requisitions mentioned in the articles of Confederation, the United 
States in Cong*, be authorized to make such requisitions in proportion to the 
whole number of white & other free citizens & inhabitants of every age sex and 
condition including those bound to servitude for a term of years & three fifths 
of all other persons not comprehended in the foregoing description, except In- 
dians not paying taxes ; that if such requisitions be not complied with, in the time 
specified therein, to direct the collection thereof in the non complying States & 
for that purpose to devise and pass acts directing & authorizing the same; pro- 
vided that none of the powers hereby vested in the U. States in Cong^. shall be 
exercised without the consent of at least States, and in that proportion if 
the number of Confederated States should hereafter be increased or diminished. 

4. Res*, that the U. States in Cong*, be authorized to elect a federal Executive 
to consist of persons, to continue in office for the term of years, to 
receive punctually at stated times a fixed compensation for their services, in which 
no increase nor diminution shall be made so as to affect the persons composing 
the Executive at the time of such increase or diminution, to be paid out of the 
federal treasury ; to be incapable of holding any other office or appointment dur- 
ing their time of service and for years thereafter; to be ineligible a second 
time, & removeable by Cong*, on application by a majority of the Executives of 
the several States ; that the Executives besides their general authority to execute 
the federal acts ought to appoint all federal officers not otherwise provided for, 
& to direct all military operations ; provided that none of the persons composing 
the federal Executive shall on any occasion take command of any troops, so as 
personally to conduct any enterprise as General, or in any other capacity. 

5. Res*, that a federal Judiciary be established to consist of a supreme Trib- 



APPENDIX 527 

unal the Judges of which to be appointed by the Executive, & to hold their offices 
during good behaviour, to receive punctually at stated times a fixed compensation 
for their services in which no increase nor diminution shall be made, so as to 
afTect the persons actually in office at the time of such increase or diminution: 
that the Judiciary so established shall have authority to hear & determine in the 
first instance on all impeachments of federal officers, & by way of appeal in the 
dernier resort in all cases touching the rights of Ambassadors, in all cases of cap- 
tures from an enemy, in all cases of piracies & felonies on the high seas, in all 
cases in which foreigners may be interested, in the construction of any treaty or 
treaties, or which may arise on any of the Acts for regulation of trade, or 
the collection of the federal Revenue : that none of the Judiciary shall during the 
time they remain in Office be capable of receive or holding any other office or 
appointment during their time of service, or for thereafter. 

6. Res^. that all Acts of the U. States in Cong*, made by virtue & in pursuance 
of the powers hereby & by the articles of confederation vested in them, and all 
Treaties made & ratified under the authority of the U. States shall be the supreme 
law of the respective States so far forth as those Acts or Treaties shall relate to 
the said States or their Citizens, and that the Judiciary of the several States shall 
be bound thereby in their decisions, any thing in the respective laws of the 
Individual States to the Contrary notwithstanding: and that if any State, or any 
tody of men in any State shall oppose or prevent y*. carrying into execution such 
acts or treaties, the federal Executive shall be authorized to call forth ye power 
of the Confederated States, or so much thereof as may be necessary to enforce 
and compel an obedience to such Acts, or an Observance of such Treaties. 

7. Res^. that provision be made for the admission of new States into the 
Union. 

8. Res^ that the rule for naturalization ought to be the same in every State. 

9. Res'*, that a Citizen of one State committing an offence in another State of 
the Union, shall be deemed guilty of the same offence as if it had been committed 
by a Citizen of the State in which the offence was committed. 



V. ALEXANDER HAMILTON'S SKETCH OF A GOVERNMENT FOR 
THE UNITED STATES, PRESENTED JUNE 18, 1787.^ 

I " The Supreme Legislative power of the United States of America to be 
vested in two different bodies of men ; the one to be called the Assembly, the 
other the Senate who together shall form the Legislature of the United States 
with power to pass all laws whatsoever subject to the Negative hereafter men- 
tioned. 

II The Assembly to consist of persons elected by the people to serve for 
three years. 

III. The Senate to consist of persons elected to serve during good behaviour; 



Documentary History, Vol. iii, pp. 149-151. 



528 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

their election to be made by electors chosen for that purpose by the people : in 
order to this the States to be divided into election districts. On the death, re- 
moval or resignation of any Senator his place to be fiUed out of the district from 
which he came. 

IV. The supreme Executive authority of the United States to be vested in a 
Governour to be elected to serve during good behaviour — the election to be 
made by Electors chosen by the people in the Election Districts aforesaid — 
The authorities & functions of the Executive to be as follows : to have a negative 
on all laws about to be passed, and the execution of all laws passed, to have the 
direction of war when authorized or begun ; to have with the advice and appro- 
bation of the Senate the power of making all treaties ; to have the sole appoint- 
ment of the heads or chief officers of the departments of Finance, War and For- 
eign Affairs; to have the nomination of all other officers (Ambassadors to for- 
eign Nations included) subject to the approbation or rejection of the Senate; to 
have the power of pardoning all offences except Treason; which he shall not 
pardon without the approbation of the Senate. 

V. On the death resignation or removal of the Governour his authorities to 
be exercised by the President of the Senate till a Successor be appointed. 

VI The Senate to have the sole power of declaring war, the power of ad- 
vising and approving all Treaties, the power of approving or rejecting all appoint- 
ments of officers except the heads or chiefs of the departments of Finance War 
and foreign affairs. 

VII. The supreme Judicial authority to be vested in Judges to hold 
their offices during good behaviour with adequate and permanent salaries. This 
Court to have original jurisdiction in all causes of capture, and an appellative 
jurisdiction in all causes in which the revenues of the general Government or the 
citizens of foreign nations are concerned. 

VIII. The Legislature of the United States to have power to institute Courts 
in each State for the determination of all matters of general concern. 

IX. The Governour Senators and all officers of the United States to be liable 
to impeachment for mal- and corrupt conduct ; and upon conviction to be removed 
from office, & disqualified for holding any place of trust or profit — all impeach- 
ments to be tried by a Court to consist of the Chief or Judge of the Superior 
Court of Law of each State, provided such Judge shall hold his place during 
good behavior, and have a permanent salary. 

X All laws of the particular States contrary to the Constitution or laws of 
the United States to be utterly void ; and the better to prevent such laws being 
passed, the Governour or president of each State shall be appointed by the Gen- 
eral Government and shall have a negative upon the laws about to be passed ia 
the State of which he is the Governour or President. 

XI No State to have any forces land or Naval; and the Militia of all the 
States to be under the sole and exclusive direction of the United States, the 
officers of which to be appointed and commissioned by them 



APPENDIX 



529 



VI. MR. RANDOLPH'S RESOLUTIONS AS REVISED AND EN- 
LARGED BY THE CONVENTION AND REFERRED JULY 26, 1787, 
TO THE COMMITTEE OF DETAIL.^ 



I. Resolved, That the government of the United States 
ought to consist of a supreme legislative, judiciary, and 
executive. 
II. Resolved, That the legislature consist of two branches. 

III. Resolved, That the members of the first branch of the 
legislature ought to be elected by the people of the 
several states, for the term of two years ; to be paid out 
of the publick treasury ; to receive an adequate com- 
pensation for their services ; to be of the age of twenty- 
five years at least; to be ineligible and incapable of 
holding any office under the authority of the United 
States (except those peculiarly belonging to the func- 
tions of the first branch) during the term of service of 
the first branch. 

IV. Resolved, That the members of the second branch of the 
legislature of the United States ought to be chosen by 
the individual legislatures ; to be of the age of thirty 
years at least ; to hold their offices for six years, one 
third to go out biennially ; to receive a compensation 
for the devotion of their time to the publick service ; to 
be ineligible to and incapable of holding any office, under 
the authority of the United States (except those pe- 
culiarly belonging to the functions of the second 
branch) during the term for which they are elected, 
and for one year thereafter. 

V. Resolved, That each branch ought to possess the right of 
originating acts. 
VI. Resolved, That the national legislature ought to possess 
the legislative rights vested in Congress by the confed- 
eration ; and moreover, to legislate in all cases for the 
general interests of the union, and also in those to which 
the states are separately incompetent, or in which the 
harmony of the United States may be interrupted by 
the exercise of individual legislation. 
VII. Resolved, That the legislative acts of the United States, 
made by virtue and in pursuance of the articles of 
union, and all treaties made and ratified under the au- 
thority of the United States, shall be the supreme law 

Journal, Acts and Proceedings of the Federal Convention, 1819, pp. 207-213. 



530 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of the respective states, as far as those acts or treaties 
July 17. shall relate to the said states, or their citizens and in- 

habitants ; and that the judiciaries of the several states 
shall be bound thereby in their decisions, any thing in 
the respective laws of the individual States to the con- 
trary, notwithstanding. 
July 16. VIII. Resolved, That in the original formation of the legisla- 

ture of the United States, the first branch thereof shall 
consist of sixty-five members ; of which number 
New Hampshire shall send. . . .three, 

Massachusetts eight, 

Rhode Island one, 

Connecticut five, 

New York six, 

New Jersey four, 

Pennsylvania eight, 

Delaware , one, 

Maryland six, 

Virginia ten. 

North Carolina five. 

South Carolina five, 

Georgia three. 

But as the present situation of the states may prob- 
ably alter in the number of their inhabitants, the legis- 
lature of the United States shall be authorized, from 
time to time, to apportion the number of representa- 
tives; and in case any of the states shall hereafter be 
divided, or enlarged by addition of territory, or any 
two or more states united, or any new states created 
within the limits of the United States, the legislature of 
the United States shall possess authority to regulate the 
number of representatives, in any of the foregoing 
cases, upon the principle of their number of inhabitants 
according to the provisions hereafter mentioned, 
namely — Provided always, that representation ought to 
be proportioned according to direct taxation. And in 
order to ascertain the alteration in the direct taxation, 
which may be required from time to time by the 
changes in the relative circumstances of the states — 
IX. Resolved, That a census be taken within six years from 
the first meeting of the legislature of the United States, 
and once within the term of every ten years afterwards, 
of all the inhabitants of the United States, in the man- 
ner and according to the ratio recommended by Con- 



APPENDIX 531 

gress in their resolution of April 18, 1783 ; and that the 
legislature of the United States shall proportion the 
direct taxation accordingly. 
X. Resolved, That all bills for raising or appropriating money, 
and for fixing the salaries of the officers of the govern- 
ment of the United States, shall originate in the first 
branch of the legislature of the United States, and shall 
not be altered or amended by the second branch ; and 
that no money shall be drawn from the publick treasury, 
but in pursuance of appropriations to be originated by 
the first branch. 
XL Resolved, That in the second branch of the legislature of 
the United States, each state shall have an equal vote. 
July 26. XII. Resolved, That a national executive be instituted, to con- 

sist of a single person ; to be chosen by the national leg^ 
islature, for the term of seven years ; to be ineligible a 
second time ; with power to carry into execution the na- 
tional laws ; to appoint to offices in cases not otherwise 
provided for ; to be removable on impeachment, and 
conviction of mal-practice or neglect of duty ; to receive 
a fixed compensation for the devotion of his time to the 
publick service ; to be paid out of the publick treasury. 
July 21. XIII. Resolved, That the national executive shall have a right 

to negative any legislative act, which shall not be after- 
wards passed, unless by two third parts of each branch 
of the national legislature. 
July 18. XIV. Resolved, That a national judiciary be established, to con- 

July 21. sist of one supreme tribunal, the judges of which shall 

be appointed by the second branch of the national legis- 
July 18. lature; to hold their offices during good behaviour; to 

receive punctually, at stated times, a fixed compensation 
for their services, in which no diminution shall be made, 
so as to affect the persons actually in office at the time 
of such diminution. 
XV. Resolved, That the national legislature be empowered to 

appoint inferior tribunals. 
XVI. Resolved, That the jurisdiction of the national judiciary 
shall extend to cases arising under laws passed by the 
general legislature ; and to such other questions as in- 
volve the national peace and harmony. 
XVII. Resolved, That provision ought to be made for the ad- 
mission of states lawfully arising within the limits of 
the United States, whether from a voluntary junction 
of government and territory, or otherwise, with the 



532 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

consent of a number of voices in the national legislature 
less than the whole. 
XVIII. Resolved, That a republican form of government shall be 
guarantied to each state ; and that each state shall be 
protected against foreign and domestick violence. 

July 23. XIX. Resolved, That provision ought to be made for the amend- 

ment of the articles of union, whensoever it shall seem 
necessary. 
XX. Resolved, That the legislative, executive, and judiciary 
powers, within the several states, and of the national 
government, ought to be bound, by oath, to support the 
articles of union. 
XXI. Resolved, That the amendments which shall be offered to 
the confederation by the convention ought, at a proper 
time or times after the approbation of Congress, to be 
submitted to an assembly or assemblies of representa- 
tives, recommended by the several legislatures, to be 
expressly chosen by the people to consider and decide 
thereon. 
XXII. Resolved, That the representation in the second branch of 
the legislature of the United States consist of two mem- 
bers from each state, who shall vote per capita. 

July 26. XXIII. Resolved, That it be an instruction to the committee, to 

whom were referred the proceedings of the convention 
for the establishment of a national government, to re- 
ceive a clause or clauses, requiring certain qualifications 
of property and citizenship, in the United States, for 
the executive, the judiciary, and the members of both 
branches of the legislature of the United States. 

VII. REPORT OF THE COMMITTEE OF DETAIL, AUGUST 6, 1787.^ 

" We the people of the States of New Hampshire, Massachusetts, Rhode-Island 
and Providence Plantations, Connecticut, New- York, New-Jersey, Pennsylvania, 
Delaware, Maryland, Virginia North-Carolina, South-CaroHna, and Georgia, do 
ordain, declare, and establish the following Constitution for the Government of 
Ourselves and our Posterity. 

Article I 

The stile of the Government shall be, " The United States of America " 

II 

The Government shall consist of supreme legislative, executive, and judicial 
powers. 

^Documentary History, Vol. iii, pp. 444-458. 



533 



III 



The legislative power shall be vested in a Congress, to consist of two separate 
and distinct bodies of men, a House of Representatives and a Senate ; each of 
which shall in all cases have a negative on the other. The Legislature shall meet 
on the first Monday in December every year. 

IV 

Sect. 1. The members of the House of Representatives shall be chosen 
every second year, by the people of the several States comprehended within this 
Union. The qualifications of the electors shall be the same, from time to time, 
as those of the electors in the several States, of the most numerous branch of their 
own legislatures. 

Sect. 2. Every member of the House of Representatives shall be of the 
age of twenty five years at least; shall have been a citizen of the United States 
for at least three years before his election ; and shall be, at the time of his elec- 
tion, a resident of the State in which he shall be chosen. 

Sect. 3. The House of Representatives shall, at its first formation, and 
until the number of citizens and inhabitants shall be taken in the manner herein 
after described, consist of sixty five Members, of whom three shall be chosen in 
New Hampshire, eight in Massachusetts, one in Rhode-Island and Providence 
Plantations, five in Connecticut, six in New- York, four in New-Jersey, eight in 
Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North- 
Carolina, five in South-Carolina, and three in Georgia. 

Sect. 4. As the proportions of numbers in different States will alter from 
time to time ; as some of the States may hereafter be divided ; as others may be 
enlarged by addition of territory ; as two or more States may be united ; as new 
States will be erected within the limits of the United States, the Legislature shall, 
in each of these cases, regulate the number of representatives by the number of 
inhabitants, according to the provisions herein after made, at the rate of one for 
every forty thousand. 

Sect. 5. All bills for raising or appropriating money, and for fixing the 
salaries of the officers of Government, shall originate in the House of Repre- 
sentatives, and shall not be altered or amended by the Senate. No money shall 
be drawn from the public Treasury, but in pursuance of appropriations that shall 
originate in the House of Representatives. 

Sect. 6. The House of Representatives shall have the sole power of im- 
peachment. It shall choose its Speaker and other officers. 

Sect. 7. Vacancies in the House of Representatives shall be supplied by 
writs of election from the executive authority of the State, in the representation 
from which it shall happen. 

V 
Sect. 1. The Senate of the United States shall be chosen by the Legislatures 
of the several States. Each Legislature shall chuse two members. Vacancies 



534 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

may be supplied by the Executive until the next meeting of the Legislature. 
Each member shall have one vote. 

Sect. 2. The Senators shall be chosen for six years ; but immediately after 
the first election they shall be divided, by lot, into three classes, as nearly as may 
be, numbered one, two and three. The seats of the members of the first class 
shall be vacated at the expiration of the second year, of the second class at the 
expiration of the fourth year, of the third class at the expiration of the sixth 
year, so that a third part of the members may be chosen every second year. 

Sect. 3. Every member of the Senate shall be of the age of thirty years at 
least ; shall have been a citizen in the United States for at least four years before 
his election ; and shall be, at the time of his election, a resident of the State for 
which he shall be chosen. 

Sect. 4. The Senate shall chuse its own, President and other officers. 

VI 

Sect. 1. The times and places and manner of holding the elections of the 
members of each House shall be prescribed by the Legislature of each State ; but 
their provisions concerning them may, at any time, be altered by the Legislature 
of the United States. 

Sect. 2. The Legislature of the United States shall have authority to estab- 
lish such uniform qualifications of the members of each House, with regard to 
property, as to the said Legislature shall seem expedient. 

Sect. 3. In each House a majority of the members shall constitute a quorum 
to do business; but a smaller number may adjourn from day to day. . 

Sect. 4. Each House shall be the judge of the elections, returns and quali- 
fications of its own members. 

Sect. 5. Freedom of speech and debate in the Legislature shall not be im- 
peached or questioned in any Court or place out of the Legislature ; and the mem- 
bers of each House shall, in all cases, except treason felony and breach of the 
peace, be privileged from arrest during their attendance at Congress, and in going 
to and returning from it. 

Sect. 6. Each House may determine the rules of its proceedings ; may punish 
its members for disorderly behaviour; and may expel a member. 

Sect. 7. The House of Representatives, and the Senate, when it shall be 
acting in a legislative capacity, shall keep a Journal of their proceedings, and shall, 
from time to time, publish them : and the yeas and nays of the members of each 
House, on any question, shall at the desire of one-fifth part of the members 
present, be entered on the journal. 

Sect. 8. Neither House, without the consent of the other, shall adjourn for 
more than three days, nor to any other place than that at which the two Houses 
are sitting. But this regulation shall not extend to the Senate, when it shall 
exercise the powers mentioned in the article. 

Sect. 9. The members of each House shall be ineligible to, and incapable of 
holding any office under the authority of the United States, during the time for 



APPENDIX 535 

which they shall respectively be elected : and the members of the Senate shall be 
ineligible to, and incapable of holding any such office for one year afterwards. 

Sect. 10. The members of each House shall receive a compensation for 
their services, to be ascertained and paid by the State, in which they shall be 
chosen. 

Sect. 11. The enacting stile of the laws of the United States shall be, " Be 
it enacted by the Senate and Representatives in Congress assembled." 

Sect. 12. Each House shall possess the right of originating bills, except in 
the cases beforementioned. 

Sect. 13. Every bill, which shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the President of 
the United States for his revision: if, upon such revision, he approve of it, he 
shall signify his approbation by signing it: But if, upon such revision, it shall 
appear to him improper for being passed into a law, he shall return it, together 
with his objections against it, to that House in which it shall have originated, who 
shall enter the objections at large on their journal and proceed to reconsider the 
bill. But if after such reconsideration, two thirds of that House shall, notwith- 
standing the objections of the President, agree to pass it, it shall together with his 
objections, be sent to the other House, by which it shall likewise be reconsidered, 
and if approved by two thirds of the other House also, it shall become a law. 
But in all such cases, the votes of both Houses shall be determined by yeas and 
nays ; and the names of the persons voting for or against the bill shall be entered 
on the journal of each House respectively. If any bill shall not be returned by 
the President within seven days after it shall have been presented to him, it shall 
be a law, unless the legislature by their adjournment, prevent its return; in which 
case it shall be a law. 

vn 

Sect. 1. The Legislature of the United States shall have the power to lay 
and collect taxes, duties, imposts and excises ; 

To regulate commerce with foreign nations, and among the several States ; 

To establish an uniform rule of naturalization throughout the United States; 

To coin money ; 

To regulate the value of foreign coin ; 

To fix the standard of weights and measures. 

To establish Post-offices; 

To borrow money, and emit bills on the credit of the United States ; 

To appoint a Treasurer by ballot ; 

To constitute tribunals inferior to the Supreme Court ; 

To make rules concerning captures on land and water; 

To declare the law and punishment of piracies and felonies committed on the 
high seas, and the punishment of counterfeiting the coin of the United States, 
and of offences against the law of nations; 

To subdue a rebellion in any State, on the application of its legislature; 



536 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

To make war ; 

To raise armies ; 

To build and equip fleets ; 

To call forth the aid of the militia, in order to execute the laws of the Union, 
enforce treaties, suppress insurrections, and repel invasions ; 

And to make all laws that shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested, by this Constitution, 
in the government of the United States, or in any department or officer thereof ; 

Sect. 2. Treason against the United States shall consist only in levying war 
against the United States, or any of them ; and in adhering to the enemies of the 
United States, or any of them. The Legislature of the United States shall have 
power to declare the punishment of treason. No person shall be convicted of 
treason, unless on the testimony of two witnesses. No attainder of treason shall 
work corruption of bloods nor forfeiture, except during the life of the person 
attainted. 

Sect. 3. The proportions of direct taxation shall be regulated by the whole 
number of white and other free citizens and inhabitants, of every age, sex and 
condition, including those bound to servitude for a term of years, and three fifths 
of all other persons not comprehended in the foregoing description, (except 
Indians not paying taxes) which number shall, within six years after the first 
meeting of the Legislature, and within the term of every ten years afterwards, 
be taken in such manner as the said Legislature shall direct. 

Sect. 4. No tax or duty shall be laid by the Legislature on articles exported 
from any State ; nor on the migration or importation of such persons as the sev- 
eral States shall think proper to admit ; nor shall such migration or importation be 
prohibited. 

Sect. 5. No capitation tax shall be laid, unless in proportion to the Census 
hereinbefore directed to be taken. 

Sect. 6. No navigation act shall be passed without the assent of two thirds 
of the members present in each House. 

Sect. 7. The United States shall not grant any title of Nobility. 

VIII 

The acts of the Legislature of the United States made in pursuance of this 
Constitution, and all treaties made under the authority of the United States shall 
be the supreme law of the several States, and of their citizens and inhabitants ; and 
the judges in the several States shall be bound thereby in their decisions; any 
thing in the Constitution or laws of the several States to the contrary notwith- 
standing. 

IX 

Sect. 1. The Senate of the United States shall have power to make treaties, 
and to appoint Ambassadors, and Judges of the Supreme Court. 

Sect. 2. In all disputes and controversies now subsisting, or that may here- 



APPENDIX 537 

'ter subsist between two or more States, respecting jurisdiction or territory, the 
Senate shall possess the following powers. Whenever the Legislature, or the 
Executive authority, or lawful Agent of any State, in controversy with another, 
shall by memorial to the Senate, state the matter in question, and apply for a 
hearing; notice of such memorial and application shall be given by order of the 
Senate, to the Legislature or the Executive authority of the other State in Con- 
troversy. The Senate shall also assign a day for the appearance of the parties, 
by their agents, before the House. The Agents shall be directed to appoint, by 
joint consent, commissioners or judges to constitute a Court for hearing and de- 
termining the matter in question. But if the Agents cannot agree, the Senate 
shall name three persons out of each of the several States; and from the list of 
such persons each party shall alternately strike out one, until the number shall be 
reduced to thirteen ; and from that number not less than seven nor more than nine 
names, as the Senate shall direct, shall in their presence, be drawn out by lot; 
and the persons whose names shall be so drawn, or any five of them shall be com- 
missioners or Judges to hear and finally determine the controversy ; provided a 
majority of the Judges, who shall hear the cause, agree in the determination. If 
either party shall neglect to attend at the day assigned, without shewing sufficient 
reasons for not attending, or being present shall refuse to strike, the Senate shall 
proceed to nominate three persons out of each State, and the Clerk of the Senate 
shall strike in behalf of the party absent or refusing. If any of the parties shall 
refuse to submit to the authority of such Court ; or shall not appear to prosecute 
or defend their claim or cause, the Court shall nevertheless proceed to pronounce 
judgment. The judgment shall be final and conclusive. The proceedings shall 
be transmitted to the President of the Senate, and shall be lodged among the 
public records, for the security of the parties concerned. Every Commissioner 
shall, before he sit in judgment, take an oath, to be administered by one of the 
Judges of the Supreme or Superior Court of the State where the cause shall be 
tried, " well and truly to hear and determine the matter in question according to 
the best of his judgment, without favor, affection, or hope of reward." 

Sect. 3. All controversies concerning lands claimed under different grants 
of two or more States, whose jurisdictions, as they respect such lands shall have 
been decided or adjusted subsequent to such grants, or any of them, shall, on 
application to the Senate, be finally determined, as near as may be, in the same 
manner as is before prescribed for deciding controversies between different States. 

X 

Sect. L The Executive Power of the United States shall be vested in a 
single person. His stile shall be, " The President of the LTnited States of Amer- 
ica ; " and his title shall be, " His Excellency." He shall be elected by ballot by 
the Legislature. He shall hold his office during the term of seven years ; but shall 
not be elected a second time. 

Sect. 2. He shall, from time to time, give information to the Legislature, of 
the state of the Union : he may recommend to their consideration such measures 
as he shall judge necessary, and expedient: he may convene them on extraordi- 



538 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

nary occasions. In case of disagreement between the two Houses, with regard 
to the time of adjournment, he may adjourn them to such time as he thinks 
proper : he shall take care that the laws of the United States be duly and faith- 
fully executed : he shall commission all the officers of the United States ; and shall 
appoint officers in all cases not otherwise provided for by this Constitution. He 
shall receive Ambassadors, and may correspond with the supreme Executives of 
the several States. He shall have power to grant reprieves and pardons ; but his 
pardon shall not be pleadable in bar of an impeachment. He shall be commander 
in chief of the Army and Navy of the United States, and of the Militia of the 
Several States. He shall, at stated times, receive for his services, a compensation, 
which shall neither be increased nor diminished during his continuance in office. 
Before he shall enter on the duties of his department, he shall take the following 

oath or affirmation, " I solemnly swear, (or affirm) that I will faithfully 

execute the office of President of the United States of America." He shall be 
removed from his office on impeachment by the House of Representatives, and 
conviction in the supreme Court, of treason, bribery, or corruption. In case of 
his removal as aforesaid, death, resignation, or disability to discharge the powers 
and duties of his office, the President of the Senate shall exercise those powers 
and duties, until another President of the United States be chosen, or until the 
disability of the President be removed. 

XI 

Sect. 1. The Judicial Power of the United States shall be vested in one 
Supreme Court, and in such inferior Courts as shall, when necessary, from time 
to time, be constituted by the Legislature of the United States. 

Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall 
hold their offices during good behaviour. They shall, at stated times, receive for 
their services, a compensation, which shall not be diminished during their con- 
tinuance in office. 

Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases 
arising under laws passed by the Legislature of the United States ; to all cases 
affecting Ambassadors, other Public Ministers and Consuls; to the trial of im- 
peachments of Officers of the United States; to all cases of Admiralty and mari- 
time jurisdiction; to controversies between two or more States, (except such as 
shall regard Territory or Jurisdiction) between a State and Citizens of another 
State, between Citizens of different States, and between a State or the Citizens 
thereof and foreign States, citizens or subjects. In cases of impeachment, cases 
affecting Ambassadors, other Public Ministers and Consuls, and those in which a 
State shall be party, this jurisdiction shall be original. In all the other cases 
before mentioned, it shall be appellate, with such exceptions and under such regu- 
lations as the Legislature shall make. The Legislature may assign any part of 
the jurisdiction above mentioned (except the trial of the President of the United 
States) in the manner, and under the limitations which it shall think proper, to 
such Inferior Courts, as it shall constitute from time to time. 



APPENDIX 539 

Sect. 4. The trial of all criminal offences (except in cases of impeachments) 
shall be in the State where they shall be committed ; and shall be by Jury. 

Sect. 5. Judgment, in cases of Impeachment, shall not extend further than 
to removal from Office, and disqualification to hold and enjoy any office of 
honour, trust or profit, under the United States. But the party convicted shall, 
nevertheless be liable and subject to indictment, trial, judgment and punishment 
according to law. 

XII 

No State shall coin money ; nor grant letters of marque and reprisal ; nor enter 
into any treaty, alliance, or confederation ; nor grant any title of Nobility. 

XIII 

No State, without the consent of the Legislature of the United States, shall 
emit bills of credit, or make any thing but specie a tender in payment of debts ; 
nor lay imposts or duties on imports; not keep troops or ships of war in time 
of peace; nor enter into any agreement or compact with another State, or with 
any foreign power ; nor engage in any war, unless it shall be actually invaded by 
enemies, or the danger of invasion be so imminent, as not to admit of delay, 
until the Legislature of the United States can be consulted. 

XIV 

The Citizens of each State shall be entitled to all privileges and immunities 
of citizens in the several States. 

XV 

Any person charged with treason, felony or high misdemeanor in any State, 
who shall flee from justice, and shall be found in any other State, shall, on demand 
of the Executive power of the State from which he fled, be delivered up and 
removed to the State having jurisdiction of the offence. 

XVI 
Full faith shall be given in each State to the acts of the Legislatures, and to 
the records and judicial proceedings of the Courts and Magistrates of every other 
State. 

XVII 

New States lawfully constituted or established within the limits of the United 
States may be admitted, by the Legislature, into this Government ; but to such ad- 
mission the consent of two thirds of the members present in each House shall be 
necessary. If a new State shall arise within the limits of any of the present 
States, the consent of the Legislatures of such States shall be also necessary to 
its admission. If the admission be consented to, the new States shall be admitted 
on the same terms with the original States. But the Legislature may make con- 
ditions with the new States, concerning the public debt which shall be then sub- 
sisting. 



540 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

XVIII 

The United States shall guaranty to each State a Republican form of Gov- 
ernment ; and shall protect each State against foreign invasions, and, on the appli- 
cation of its Legislature, against domestic violence. 

XIX 

On the application of the Legislatures of two thirds of the States in the Union, 
for an amendment of this Constitution, the Legislature of the United States shall 
call a Convention for that purpose. 

XX 

The members of the Legislatures, and the Executive and Judicial officers of 
the United States, and of the several States, shall be bound by oath to support 
this Constitution. 

XXI 

The ratification of the Conventions of States shall be sufficient for organ- 

izing this Constitution. 

XXII 

This Constitution shall be laid before the United States in Congress assem- 
bled, for their approbation ; and it is the opinion of this Convention, that it should 
be afterwards submitted to a Convention chosen, under the recommendation of 
its legislature, in order to receive the ratification of such Convention. 

XXIII 

To introduce this government, it is the opinion of this Convention, that each 
assenting Convention should notify its assent and ratification to the United States 
in Congress assembled; that Congress, after receiving the assent and ratification 
of the Conventions of States, should appoint and publish a day, as early as 

may be, and appoint a place, for commencing proceedings under this Constitu- 
tion ; that after such publication, the Legislatures of the several States should 
elect members of the Senate, and direct the election of members of the House of 
Representatives; and that the members of the Legislature should meet at the 
time and place assigned by Congress, and should, as soon as may be, after their 
meeting, choose the President of the United States, and proceed to execute this 
Constitution." 



1 



APPENDIX 541 



VIII. PROCEEDINGS OF CONVENTION REFERRED TO THE COM- 
MITTEE OF STYLE AND ARRANGEMENT, SEPTEMBER 10, 1787.^ 

We the People of the States of New-Hampshire, Massachusetts. Rhode-Island 
and Providence Plantations, Connecticut, New- York, New-Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do 
ordain, declare and establish the following Constitution for the Government of 
Ourselves and our Posterity. 

Article I 
The stile of this Government shall be, " The United States of America." 



II 

The Government shall consist of supreme legislative, executive and judicial 
powers. 

HI 

The legislative power shall be vested in a Congress, to consist of two separate 
and distinct bodies of men, a House of Representatives, and a Senate. The Legis- 
lature shall meet at least once in every year, and such meeting shall be on the first 
Monday in December unless a different day shall be appointed by law. 

IV 

Sect. 1. The Members of the House of Representatives shall be chosen every 
second year, by the people of the several states comprehended within this Union. 
The qualifications of the electors shall be the same, from time to time, as those of 
the electors in the several States, of the most numerous branch of their own leg- 
islatures. 

Sect. 2. Every Member of the House of Representatives shall be of the age 
of twenty-five years at least ; shall have been a citizen of the United States for at 
least seven years before his election ; and shall be, at the time of his election, an 
inhabitant of the State in which he shall be chosen. 

Sect. 3. The House of Representatives shall, at its first formation and until 
the number of citizens and inhabitants shall be taken in the manner herein after 
described, consist of sixty-five members, of whom three shall be chosen in New- 
Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Planta- 
tions, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsyl- 

1 Compiled by Professor Farrand and with his permission reprinted from Farrand, The 
Records of the Federal Convention, vol. ii, pp. S65-S79. 



542 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

vania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, 
five in South-Carolina, and three in Georgia. 

Sect. 4. As the proportions of numbers in the different states will alter from 
time to time ; as some of the States may hereafter be divided ; as others may be 
enlarged by addition of territory; as two or more States may be united; as new 
States will be erected within the limits of the United States, the Legislature shall, 
in each of these cases, regulate the number of representatives by the number of in- 
habitants, according to the rule hereinafter made for direct taxation not exceeding 
the rate of one for every forty thousand. Provided that every State shall have at 
least one representative. 

Sect. 6.^ The House of Representatives shall have the sole power of im- 
peachment. It shall choose its Speaker and other officers. 

Sect. 7. Vacancies in the House of Representatives shall be supplied by writs 
of election from the executive authority of the State, in the representation from 
which they shall happen. 



Sect. 1. The Senate of the United States shall be chosen by the Legislatures 
of the several States. Each Legislature shall chuse two members. Vacancies 
happening by refusals to accept, resignations or otherwise may be supplied by the 
Legislature of the State in the representation of which such vacancies shall hap- 
pen, or by the executive thereof until the next meeting of the Legislature. Each 
member shall have one vote. 

Sect. 2. The Senators shall be chosen for six years; but immediately after 
they shall be assembled in consequence of the first election they shall be divided, 
by lot, into three classes, as nearly as may be, numbered one, two and three. The 
seats of the members of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the fourth year, of the third 
class at the expiration of the sixth year, so that a third part of the members may be 
chosen every second year. 

Sect. 3. Every member of the Senate shall be of the age of thirty years at 
least ; shall have been a citizen of the United States for at least nine years before 
his election ; and shall be, at the time of his election, an inhabitant of the State for 
which he shall be chosen. 

Sect. 4. The Senate shall chuse its own President and other officers. 

VI 

Sect. 1. The times and places and the manner of holding the elections of the 
members of each House shall be prescribed by the Legislature of each State re- 
spectively ; but regulations in each of the foregoing cases may, at any time, be made 
or altered by the Legislature of the United States. 

Sect. 3.^ In each House a majority of the members shall constitute a quorum 

1 Sect. 5 was struck out. 

2 Sect. 2 was struck out. 



APPENDIX 543 

to do business; but a smaller number may adjourn from day to day, and may be 
authorised to compel the attendance of absent members in such manner and under 
such penalties as each House may provide. 

Sect. 4. Each House shall be the judge of the elections, returns and qualifica- 
tions of its own members. 

Sect. 5. Freedom of speech and debate in the Legislature shall not be im- 
peached or questioned in any court or place out of the Legislature ; and the mem- 
bers of each House shall, in all cases, except treason, felony and breach of the 
peace, be privileged from arrest during their attendance at Congress, and in 
going to and returning from it. 

Sect. 6. Each House may determine the rules of its proceedings ; may punish 
its members for disorderly behaviour; and may, with the concurrence of two 
thirds, expel a member. 

Sect. 7. The House of Representatives, and the Senate, shall keep a journal 
of their proceedings, and shall, from time to time, publish them, except such parts 
thereof as in their judgment require secrecy; and the yeas and nays of the mem- 
bers of each House, on any question, shall, at the desire of one-fifth part of the 
members present, be entered on the journal. 

Sect. 8. During the session of the Legislature neither House, without the 
consent of the other, shall adjourn for more than three days, nor to any place than 
that at which the two Houses are sitting. 

Sect. 9. The Members of each House shall be ineligible to any civil office 
under the authority of the United States created, or the emoluments whereof shall 
have been encreased during the time for which they shall respectively be elected — 
and no person holding any office under the United States shall be a Member of 
either House during his continuance in Office. 

Sect. 10. The members of each House shall receive a compensation for their 
services, to be paid out of the Treasury of the United States, to be ascertained by 
law. 

Sect. 11. The enacting stile of the laws of the United States shall be. " Be it 
enacted, by the Senate and Representatives in Congress assembled. 

Sect. 12. All Bills for raising revenue shall originate in the House of repre- 
sentatives : but the Senate may propose or concur with amendments as on other 
bills. No money shall be drawn from the Treasury but in consequence of appro- 
priations made by law. 

Sect. 13. Every bill, which shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the President of the 
United Slates, for his revision ; if, upon such revision, he approve of it, he shall 
signify his approbation by signing it : But if, upon such revision, it shall appear to 
him improper for being passed into a law, he shall return it, together with his objec- 
tions against it, to that House in which it shall have originated, who shall enter the 
objections at large on their Journal, and proceed to reconsider the bill. But if, 
after such reconsideration, three-fourths of that House shall, notwithstanding the 
objections of the President, agree to pass it, it shall, together with his objections be 



544 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

sent to the other House, by which it shall likewise be reconsidered, and, if approved 
by three-fourths of the other House also, it shall become a law. But, in all such 
cases, the votes of both Houses shall be determined by Yeas and Nays; and the 
names of the persons voting for or against the bill shall be entered in the Journal 
of each House respectively. If any bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall have been presented to him, 
it shall be a law, unless the Legislature, by their adjournment, prevent it"? return; 
in which case it shall not be a law. 

Sect. 14. Every order, resolution or vote, to which the concurrence of the 
Senate and House of Representatives may be necessary (except on a question 
of adjournment, and in the cases hereinafter mentioned) shall be presented to 
the President for his revision; and before the same shall have force, shall be 
approved by him, or, being disapproved by him, shall be repassed by the Senate 
and House of representatives, according to the rules and limitations prescribed 
in the case of a bill. 

VII 

Sect. 1. The Legislature shall have power to lay and collect taxes, duties, 
imposts and excises, to pay the debts and provide for the common defence and 
general welfare of the United States. 

To regulate commerce with foreign nations, and among the several States ; and 
with the Indian tribes. 

To establish an uniform rule of naturalization throughout the United States; 

To coin money; 

To regulate the value of foreign coin ; 

To fix the standard of weights and measures; 

To establish post-offices and post-roads; 

To borrow money on the credit of the United States ; 

To appoint a Treasurer by joint ballot ; 

To constitute tribunals inferior to the supreme court ; 

To make rules concerning captures on land and water ; 

To define and punish piracies and felonies committed on the high seas, to 
punish the counterfeiting of the securities, and current coin of the United States, 
and ofifences against the law of nations ; 

To declare war ; and grant letters of marque and reprisal. 

To raise and support armies ; but no appropriation of money to that use shall 
be for a longer term than two years. 

To provide & maintain a navy; 

To make rules for the government and regulation of the land and naval 
forces. 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections, and repel invasions ; 

To make laws for organizing, arming, and disciplining the militia, and for 



APPENDIX 545 

governing such part of them as may be employed in the service of the United 
States, reserving to the States, respectively, the appointment of the Officers, and 
the authority of training the militia according to the discipline prescribed by the 
United States. 

To establish uniform laws on the subject of bankruptcies. 

To exercise exclusive legislation in all cases w^hatsoever over such district (not 
exceeding ten miles square) as may by cession of particular States and the ac- 
ceptance of the Legislature become the seat of the Govern.ment of the United 
States, and to exercise like authority over all Places purchased, by the consent of 
the Legislature of the State, for the erection of Forts, Magazines, Arsenals, Dock 
Yards and other needful buildings. 

To promote the progress of science and useful arts by securing for limited 
times to Authors and Inventors the exclusive right to their respective writings and 
discoveries. 

And to make all laws that shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested, by this Constitution, 
in the government of the United States, or in any department or officer thereof. 

All ^ debts contracted and engagements entered into, by or under the authority 
of Congress shall be as valid against the United States under this constitution as 
under the confederation. 

Sect. 2. Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and comfort. The 
Legislature shall have power to declare the punishment of treason. No person 
shall be convicted of treason, unless on the testimony of two witnesses to the same 
overt act, or on confession in open court. No attainder of treason shall work, 
corruption of blood, nor forfeiture, except during the life of the person attainted. 
The Legislature shall pass no bill of attainder nor any ex post facto laws. 

Sect. 3. The proportions of direct taxation shall be regulated by the whole 
number of free citizens and inhabitants, of every age, sex, and condition, including 
those bound to servitude for a term of years, and three fifths of all other persons 
not comprehended in the foregoing description (except Indians not paying taxes) 
which number shall, within three years after the first meeting of the Legislature, 
and within the term of every ten years afterwards, be taken in such manner as 
the said Legislature shall direct. 

Sect. 4. No tax or duty shall be laid by the Legislature on articles exported 
from any State. The migration or importation of such persons as the several 
States now existing shall think proper to admit shall not be prohibited by the 
Legislature prior to the year 1808 — but a tax or duty may be imposed on such 
importation not exceeding ten dollars for each person. Nor shall any regulation 
of commerce or revenue give preference to the ports of one State over those of 
another, or oblige Vessels bound to or from any State to enter, clear, or pay 
duties in another. 

1 The correct location of this clause is uncertain. It was considered and adopted in con- 
nection with the "powers of Congress," and so is inserted here. 



546 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

And all duties, imposts, and excises, laid by the Legislature, shall be uniform 
throughout the United States. 

Sect. 5. No capitation tax shall be laid, unless in proportion to the census 
herein before directed to be taken. 

Sect. 7?- The United States shall not grant any title of nobility. No per- 
son holding any office of profit or trust under the United States, shall without 
the consent of the Legislature accept of any present, emolument, office, or title 
of any kind whatever, from any king, prince or foreign State. 

VIII 

This Constitution and the Laws of the United States which shall be made in 
pursuance thereof, and all treaties made or which shall be made under the authority 
of the United States shall be the supreme law of the several States, and of their 
citizens and inhabitants ; and the judges in the several States shall be bound 
thereby in their decisions; any thing in the constitutions or laws of the several 
States to the contrary notwithstanding. 

IX 

Sect. 1. The Senate of the United States shall have power to try all impeach- 
ments : but no person shall be convicted without the concurrence of two thirds of 
the Members present : and every Member shall be on oath. 

X 

Sect. L The Executive power of the United States shall be vested in a single 
person. His stile shall be, " The President of the United States of America ; " 
and his title shall be, " His Excellency." He shall hold his office during the term 
of four years, and together with the Vice President, chosen for the same term, 
be elected in the following manner. 

Each State shall appoint, in such manner as its legislature may direct, a number 
of Electors equal to the whole number of Senators and Members of the House of 
representatives to which the State may be entitled in the Legislature. But no 
Person shall be appointed an Elector who is a member of the Legislature of the 
United States, or who holds any office of profit or trust under the United States. 

The Electors shall meet in their respective States and vote by ballot for two 
Persons of whom one at least shall not be an inhabitant of the same State with 
themselves. — and they shall make a Hst of all the Persons voted for, and of the 
number of votes for each, which list they shall sign and certify, and transmit 
sealed to the seat of the general Government, directed to the President of the 
Senate. 

The President of the Senate shall in the presence of the Senate and House 
of representatives open all the certificates and the votes shall then be counted. 

^ Sect. 6 was struck out. 



APPENDIX 547 

The Person having the greatest number of votes shall be the President (if 
such number be a majority of the whole number of the Electors appointed) and 
if there be more than one v^^ho have such a majority, and have an equal number 
of votes, then the House of representatives shall immediately choose by ballot 
one of them for President, the representation from each State having one vote — 
But if no Person have a majority, then from the five highest on the list, the House 
of representatives shall, in like manner, choose by ballot the President — In 
the choice of a President by the House of representatives a quorum shall consist 
of a Member or Members from two thirds of the States, and the concurrence of a 
majority of all the States shall be necessary to such choice. — and, in every case 
after the choice of the President, the Person having the greatest number of votes 
of the Electors shall be the vice-President : But, if there should remain two or 
more who have equal votes, the Senate shall choose from them the Vice President 

The Legislature may determine the time of chusing the Electors and of their 
giving their votes — But the election shall be on the same day throughout the 
United States 

The Legislature may declare by law what officer of the United States shall 
act as President in case of the death, resignation, or disability of the President 
and Vice President; and such Officer shall act accordingly, until such disabihty 
be removed, or a President shall be elected 

Sect. 2. No Person except a natural born Citizen, or a Citizen of the U. S. 
at the time of the adoption of this Constitution shall be eligible to the office of 
President ; nor shall any Person be elected to that office, who shall be under the 
age of 35 years, and who has not been in the whole, at least 14 years a resident 
within the U. S. 

Sect. 3. The Vice President shall be ex officio. President of the Senate, 
except when they sit to try the impeachment of the President, in which case the 
Chief Justice shall preside, and excepting also when he shall exercise the powers 
and duties of President, in which case, and in case of his absence, the Senate 
shall chuse a President pro tempore — The Vice President when acting as 
President of the Senate shall not have a vote unless the House be equally divided 

Sect. 4. The President by and with the advice and consent of the Senate, 
shall have power to make treaties : and he shall nominate and by and with the 
advice and consent of the Senate shall appoint Ambassadors, other public Min- 
isters and Consuls, Judges of the supreme Court, and all other officers of the 
U. S. whose appointments are not otherwise herein provided for. But no Treaty 
shall be made without the consent of two thirds of the Members present. 

The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate by granting commissions which shall expire at the end of 
the next session of the Senate. 

Sect. 2} He shall, from time to time, give to the Legislature information 
of the State of the Union: and recommend to their consideration such measures 
as he shall judge necessary, and expedient: he may convene both or either of the 

1 Original numbering, the sections above numbered 2-4 were insertions. 



548 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

Houses on extraordinary occasions, and in case of disagreement between the two 
Houses, with regard to the time of adjournment, he may adjourn them to such 
time as he shall think proper : he shall take care that the laws of the United States 
be duly and faithfully executed : he shall commission all the officers of the United 
States ; and shall appoint to all ofiFices established by this constitution except in 
cases herein otherwise provided for, and to all offices which may hereafter be 
created by law. He shall receive Ambassadors, other public Ministers and Con- 
suls. He shall have power to grant reprieves and pardons except in cases of 
impeachment. He shall be Commander in Chief of the Army and Navy of the 
United States, and of the IMilitia of the several States when called into the 
actual service of the United States; and may require the opinion in writing of 
the principal officer in each of the executive departments upon any subject 
relating to the duties of their respective offices. He shall, at stated times, receive 
for his services, a compensation, which shall neither be encreased nor diminished 
during his continuance in office. Before he shall enter on the duties of his depart- 
ment, he shall take the following Oath or Affirmation, " I • sol- 
emnly swear (or affirm) that I will faithfully execute the Office of President of 
the United States of America, and will to the best of my judgment and power, 
preserve, protect and defend the Constitution of the United States." He shall 
be removed from his office on impeachment by the House of representatives, and 
conviction by the Senate, for treason or bribery or other high crimes and mis- 
demeanors against the United States ; the Vice President and other civil Officers 
of the United States shall be removed from Office on impeachment and conviction 
as aforesaid ; and in case of his removal as aforesaid, death, absence, resignation 
or inability to discharge the powers or duties of his office the Vice President 
shall exercise those powers and duties until another President be chosen, or until 
the inability of the President be removed. 

XI 

Sect. 1. The Judicial Power of the United States both in law and equity 
shall be vested in one Supreme Court, and in such Inferior Courts as shall, when 
necessary, from time to time, be constituted by the Legislature of the United 
States. 

Sect. 2. The Judges of the Supreme Court, and of the Inferior courts, shall 
holds their offices during good behaviour. They shall, at stated times, receive for 
their services, a compensation, which shall not be diminished during their continu- 
ance in office. 

Sect. 3. The Judicial Power shall extend to all cases both in law and equity 
arising under this Constitution and the laws of the United States, and treaties 
made or which shall be made under their authority; to all cases affecting Am- 
bassadors, other Public Ministers and Consuls; to all cases of Admiralty and 
]\Iaritime Jurisdiction; to Controversies to which the United States shall be a 
party, to controversies between two or more States (except such as shall regard 



APPENDIX 549 

Territory and Jurisdiction) between a State and citizens of another State, between 
citizens of dififerent States, between citizens of the same State claiming lands 
under grants of different States, and between a State or the citizens thereof 
and foreign States, citizens or subjects. In cases affecting Ambassadors, other 
Public Ministers and Consuls, and those in which a State shall be party, the 
Supreme Court shall have original jurisdiction. In all other cases beforemen- 
tioned the Supreme Court shall have appellate jurisdiction both as to law and 
fact with such exceptions and under such regulations as the Legislature shall 
make. 

Sect. 4. The trial of all crimes (except in cases of impeachments) shall be 
by jury and such trial shall be held in the 'State where the said crimes shall have 
been committed; but when not committed within any State then the trial shall 
be at such place or places as the Legislature may direct. 

The privilege of the writ of Habeas Corpus shall not be suspended; unless 
where in cases of rebellion or invasion the public safety may require it. 

Sect. 5. Judgment, in cases of Impeachment, shall not extend further than 
to removal from ofhce, and disqualification to hold and enjoy any office of honour, 
trust or profit under the United States. But the Party convicted shall neverthe- 
less, be liable and subject to indictment, trial, judgment and punishment, accord- 
ing to law. 

XII 

No State shall coin money; nor emit bills of credit, nor make anything but 
gold or silver coin a tender in payment of debts ; nor pass any bill of attainder or 
ex post facto laws; nor grant letters of marque and reprisal, nor enter into any 
treaty, alliance, or confederation ; nor grant any title of nobility. 

XIII 

No State, without the consent of the Legislature of the United States shall 
lay imposts or duties on imports or exports, nor with such consent but for the 
use of the treasury of the United States ; nor keep troops or ships of war in time 
of peace; nor enter into any agreement or compact with another State, or with 
any foreign power ; nor engage in any war, unless it shall be actually invaded by 
enemies, or the danger of invasion be so imminent, as not to admit of a delay, 
until the Legislature of the United States can be consulted. 

XIV 

The citizens of each State shall be entitled to all privileges and immunities of 
citizens of the several States. 

XV 

Any person charged with treason, felony, or other crime in any State, who 
shall flee- from justice, and shall be found in any other State, shall, on demand 



550 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

of the Executive Power of the State from which he fled, be dehvered up and 
removed to the State having jurisdiction of the offence. 

If any Person bound to service or labor in any of the United States shall 
escape into another State, He or She shall not be discharged from such service 
or labor in consequence of any regulations subsisting in the State to which they 
escape; but shall be delivered up to the person justly claiming their service or 
labor. 

XVI 

Full faith and credit shall be given in each State to the public Acts, records, 
and judicial proceedings of every other State, and the Legislature may by general 
laws prescribe the manner in which such acts, records, and proceedings shall be 
proved and the effect thereof. 

XVII 

New States may be admitted by the Legislature into this Union : but no new 
State shall be hereafter formed or erected within the jurisdiction of any of 
the present States, without the consent of the Legislature of such State as well 
as of the general Legislature. Nor shall any State be formed by the junction of 
two or more States or parts thereof without the consent of the Legislatures of 
such States as well as of the Legislature of the United States. 

The Legislature shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the United 
States: and nothing in this Constitution contained shall be so construed as to 
prejudice any claims either of the United States or of any particular State. 

XVIII 

The United States shall guaranty to each State a Republican form of govern- 
ment ; and shall protect each State against invasions, and, on the application of its 
Legislature or Executive, against domestic violence. 

XIX 

The Legislature of the United States, whenever two thirds of both Houses 
shall deem necessary, or on the application of two thirds of the Legislatures of 
the several States, shall propose amendments to this Constitution which shall be 
valid to all intents and purposes as parts thereof, when the same shall have been 
ratified by three fourths at least of the Legislatures of the several States, or by 
Conventions in three fourths thereof, as one or the other mode of ratification 
may be proposed by the Legislature of the United-States: Provided that no 
amendments which may be made prior to the year 1808 shall in any manner 
affect the 4th and 5th Sections of article the 7th 

XX 

The Members of the Legislatures, and the executive and judicial ofificers of 



i 



APPENDIX 551 

the United States, and of the several States, shall be bound by oath or affirmation 
to support this Constitution. 

But no religious test shall ever be required as a qualification to any office or 
public trust under the authority of the United States. 

XXI 

The ratification of the Conventions of nine States shall be sufficient for 
organising this Constitution between the said States. 

XXII 

This Constitution shall be laid before the United States in Congress assembled, 
and it is the opinion of this Convention that it should be afterwards submitted to 
a Convention chosen in each State, under the recommendation of its Legislature, 
in order to receive the ratification of such Convention. 

XXIII 

To introduce this government, it is the opinion of this Convention, that each 
assenting Convention should notify its assent and ratification to the United 
States in Congress assembled; that Congress, after receiving the assent and ratifi- 
cation of the Conventions of nine States, should appoint and publish a day, as 
early as may be, and appoint a place for commencing proceedings under this Con- 
stitution ; that after such publication, the Legislatures of the several States should 
elect Members of the Senate, and direct the election of INIembers of the House of 
Representatives; and that the Members of the Legislature should meet at the 
time and place assigned by Congress and should, as soon as may be, after their 
meeting, proceed to execute this Constitution. 



552 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



IX. THE CONSTITUTION AS REPORTED BY THE COMMITTEE 

ON STYLE, SEPTEMBER 12, 1787, AND AS SIGNED, 

SEPTEMBER 17, 1787. 



Report of the Committee on Stylc?- 

We, the people of the United States, 
in order to form a more perfect union, 
to establish justice, insure domestic 
tranquillity, provide for the common de- 
fence, promote the general welfare, and 
secure the blessings of liberty to our- 
selves and our posterity, do ordain and 
establish this Constitution for the 
United States of America. 

Article I 

Sect. 1. ALL legislative powers 
herein granted shall be vested in a Con- 
gress of the United States, which shall 
consist of a Senate and House of Rep- 
resentatives. 

Sect. 2. The House of Representa- 
tives shall be composed of members 
chosen every second year by the people 
of the several states, and the electors in 
each state shall have the qualifications 
requisite for electors of the most nu- 
merous branch of the state legislature. 

(a) No person shall be a representa- 
tive who shall not have attained to the 
age of twenty-five years, and been seven 
years a citizen of the United States, 
and who shall not, when elected, be an 
inhabitant of that state in which he 
shall be chosen. 

(b) Representatives and direct taxes 
shall be apportioned among the several 
states which may be included within 
this Union, according to their respec- 
tive numbers, which shall be deter- 

1 Documentary History, Vol. iii, pp. 720-733. 
- Docwnentary History, Vol. ii, pp. 3-20. 



The Constitution as signed.'^ 

We the People of the United States,] 
in Order to form a more perfect Union, 
establish Justice, insure domestic Tran- 
quility, provide for the common de- 
fence, promote the general Welfare, 
and secure the Blessings of Liberty to 
ourselves and our Posterity, do ordain 
and establish this Constitution for the 
United States of America. 

Article I 

Section 1. All legislative Powers 
herein granted shall be vested in a Con- 
gress of the United States, which shall 
consist of a Senate and House of Rep- 
resentatives. 

Section 2. The House of Repre- 
sentatives shall be composed of Mem- 
bers chosen every second Year by the 
People of the several States, and the 
Electors in each State shall have the 
Qualifications requisite for Electors of 
the most numerous Branch of the State 
Legislature. 

No Person shall be a Representative 
who shall not have attained to the Age 
of twenty five Years, and been seven 
Years a Citizen of the United States, 
and who shall not, when elected, be an 
Inhabitant of that State in which he 
shall be chosen. 

Representatives and direct Taxes 
shall be apportioned among the several 
States which may be included within 
this Union, according to their respec- 
tive Numbers, which shall be deter- 



I 



APPENDIX 



553 



Report of the Committee on Style. 

mined by adding to the whole number 
of free persons, including those bound 
to servitude for a term of years, and 
excluding Indians not taxed, three 
fifths of all other persons. The actual 
enumeration shall be made within three 
years after the first meeting of the Con- 
gress of the United States, and within 
every subsequent term of ten years, in 
such manner as they shall by law di- 
rect. The number of representatives 
shall not exceed one for every forty 
thousand, but each state shall have at 
least one representative : and until such 
enumeration shall be made, the state of 
New-Hampshire shall be entitled to 
chuse three, Massachusetts eight, 
Rhode-Island and Providence Planta- 
tions one, Connecticut five, New-York 
six, New-Jersey four, Pennsylvania 
eight, Delaware one, Maryland six, 
Virginia ten, North-Carolina five, 
South-Carolina five, and Georgia three. 

(c) When vacancies happen in the 
representation from any state, the Ex- 
ecutive authority thereof shall issue 
writs of election to fill such vacancies. 

(d) The House of Representatives 
shall choose their Speaker and other 
officers; and they shall have the sole 
power of impeachment. 

Sect. 3. The Senate of the United 
States shall be composed of two sena- 
tors from each state, chosen by the leg- 
islature thereof, for six years : and each 
senator shall have one vote. 

(a) Immediately after they shall be 
assembled in consequence of the first 
election, they shall be divided as equally 
as may be into three classes. The seats 
of the senators of the first class shall be 
vacated at the expiration of the second 
year, of the second class at the expira- 



. The Constitution as signed. 
mined by adding to the whole Number 
of free Persons, including those bound 
to Service for a Term of Years, and 
excluding Indians not taxed, three fifths 
of all other Persons. The actual Enu- 
meration shall be made within three 
Years after the first Meeting of the 
Congress of the United States, and 
within every subsequent Term of ten 
Years, in such Manner as they shall by 
Law direct. The Number of Repre- 
sentatives shall not exceed one for every 
thirty Thousand, but each State shall 
have at Least one Representative; and 
until such enumeration shall be made, 
the State of New Hampshire shall be 
entitled to chuse three, Massachusetts 
eight, Rhode-Island and Providence 
Plantations one, Connecticut .five, New- 
York six. New Jersey four, Pennsyl- 
vania eight, Delaware one, Maryland 
six, Virginia ten, North Carolina five, 
South Carolina five, and Georgia three. 

When vacancies happen in the Rep- 
resentation from any State, the Execu- 
tive Authority thereof shall issue Writs 
of Election to fill such Vacancies. 

The House of Representatives shall 
chuse their Speaker and other Officers ; 
and shall have the sole Power of Im- 
peachment. 

Section 3. The Senate of the United 
States shall be composed of two Sena- 
tors from each State, chosen by the Leg- 
islature thereof, for six Years : and each 
Senator shall have one Vote. 

Immediately after they shall be as- 
sembled in Consequence of the first 
Election, they shall be divided as equally 
as may be into three Classes. The 
Seats of the Senators of the first Class 
shall be vacated at the Expiration of 
the second Year, of the second class at 



554 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 
tion of the fourth year, and of the third 
class at the expiration of the sixth year, 
so that one-third may be chosen every 
second year: and if vacancies happen 
by resignation, or otherwise, during the 
recess of the Legislature of any state, 
the Executive thereof may make tem- 
porary appointments until the next 
meeting of the Legislature. 



(b) No person shall be a senator who 
shall not have attained to the age of 
thirty years, and been nine years a citi- 
zen of the United States, and who shall 
not, when elected, be an inhabitant of 
that state for which he shall be chosen. 

(c) The Vice-President of the United 
States shall be, ex officio, President of 
the senate, but shall have no vote, un- 
less they be equally divided. 

(d) The Senate shall choose their 
other officers, and also a President pro 
tempore, in the absence of the Vice- 
President, or when he shall exercise the 
office of President of the United States. 

(e) The Senate shall have the sole 
power to try all impeachments. When 
sitting for that purpose, they shall be on 
oath. When the President of the United 
States is tried, the Chief Justice shall 
preside: And no person shall be con- 
victed without the concurrence of two- 
thirds of the members present. 

(f) Judgment in eases of impeach- 
ment shall not extend further than to re- 
moval from office, and disqualification to 
hold and enjoy any office of honor, trust 
or profit under the United States: but 
the party convicted shall nevertheless be 



The Constitution as signed. 
the Expiration of the fourth Year, and 
of the third Class at the Expiration of 
the sixth Year, so that one third may 
be chosen every second Year; and if 
Vacancies happen by Resignation, or 
otherwise, during the Recess of the 
Legislature of any State, the Executive 
thereof may make temporary Appoint- 
ments until the next Meeting of the 
Legislature, which shall then fill such 
Vacancies. 

No Person shall be a Senator who 
shall not have attained to the Age of 
thirty Years, and been nine Years a 
Citizen of the United States, and who 
shall not, when elected, be an Inhabitant 
of that State for which he shall be 
chosen. 

The Vice President of the United 
States shall be President of the Senate, 
but shall have no Vote, unless they be 
equally divided. 

The Senate shall chuse their other 
Officers, and also a President pro tem- 
pore, in the Absence of the Vice Presi- 
dent, or when he shall exercise the Of- 
fice of President of the United States. 

The Senate shall have the sole Power 
to try all Impeachments. When sitting 
for that Purpose, they shall be on Oath 
or Affirmation. When the President of 
the United States is tried, the Chief 
Justice shall preside: And no Person 
shall be convicted without the Concur- 
rence of two thirds of the Members 
present. 

Judgment in Cases of Impeachment 
shall not extend further than to removal 
from Office, and disqualification to hold 
and enjoy any Office of honor. Trust 
or Profit under the United States: but 
the Party convicted shall nevertheless 



APPENDIX 



555 



Report of the Committee on Style. 

liable and subject to indictment, trial, 
judgment and punishment, according to 
law. 

Sect. 4. The times, places and man- 
ner of holding elections for senators 
and representatives, shall be prescribed 
in each state by the legislature thereof : 
but the Congress may at any time by 
law make or alter such regulations. 



(a) The Congress shall assemble at 
least once in every year, and such meet- 
ing shall be on the first Monday in De- 
cember, unless they shall by law appoint 
a diflferent day. 

Sect. 5. Each House shall be the 
judge of the elections, returns and qual- 
ifications of its own members, and a 
majority of each shall constitute a 
quorum to do business: but a smaller 
number may adjourn from day to day, 
and may be authorized to compel the 
attendance of absent members, in such 
manner, and under such penalties as 
each house may provide. 

(a) Each house may determine the 
rules of its proceedings ; punish its 
members for disorderly behaviour, and, 
with the concurrence of two-thirds, ex- 
pel a member. 

(b) Each house shall keep a journal 
of its proceedings, and from time to time 
publish the same, excepting such parts 
as may in their judgment require se- 
crecy; and the yeas and nays of the 
members of either house on any ques- 
tion shall, at the desire of one-fifth of 
those present, be entered on the jour- 
nal. 

(c) Neither house, during the session 
of Congress, shall, without the consent 
of the other, adjourn for more than 



The Constitution as signed. 
be liable and subject to Indictment, 
Trial, Judgment and Punishment, ac- 
cording to Law. 

Section 4. The Times, Places and 
Manner of holding Elections for Sena- 
tors and Representatives, shall be pre- 
scribed in each State by the Legislature 
thereof; but the Congress may at any 
time by Law make or alter such Regu- 
lations, except as to the Places of chus- 
ing Senators. 

The Congress shall assemble at least 
once in every Year, and such Meeting 
shall be on the first Monday in Decem- 
ber, unless they shall by Law appoint a 
dififerent Day. 

• Section 5. Each House shall be the 
Judge of the Elections, Returns and 
Qualifications of its own Members, and 
a Majority of each shall constitute a 
Quorum to do Business; but a smaller 
Number may adjourn from day to day, 
and may be authorized to compel the 
Attendance of absent Members, in such 
Manner, and under such Penalties as 
each House may provide. 

Each House may determine the Rules 
of its Proceedings, punish its Members 
for disorderly Behaviour, and, with the 
Concurrence of two thirds, expel a 
Member. 

Each House shall keep a Journal of 
its Proceedings, and from time to time 
publish the same, excepting such Parts 
as may in their Judgment require Se- 
crecy ; and the Yeas and Nays of the 
Members of either House on any ques- 
tion shall, at the Desire of one fifth of . 
those Present, be entered on the Jour- 
nal. 

Neither House, during the Session 
of Congress, shall, without the Consent 
of the other, adjourn for more than 



556 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 

three days, nor to any other place than 
that in which the two houses shall be 
sitting. 

Sect. 6. The senators and repre- 
sentatives shall receive a compensation 
for their services, to be ascertained by 
law and paid out of the treasury of the 
United States. They shall in all cases, 
except treason, felony and breach of the 
peace, be privileged from arrest during 
their attendance at the session of their 
respective houses, and in going to and 
returning from the same; and for any 
speech or debate in either house, they 
shall not be questioned in any other 
place. 

(a) No senator or representative 
shall, during the time foi' which he was 
elected, be appointed to any civil office 
under the authority of the United 
States, which shall have been created, 
or the emoluments whereof shall have 
been encreased during such time; and 
no person holding any office under the 
United States, shall be a member of 
either house during his continuance in 
office. 

Sect. 7. The enacting stile of the 
laws shall be, " Be it enacted by the 
senators and representatives in Con- 
gress assembled." 

(a) All bills for raising revenue shall 
originate in the house of representa- 
tives : but the senate may propose or 
concur with amendments as on other 
bills. 

(b) Every bill which shall have passed 
the house of representatives and the 
senate, shall, before it become a law, be 
presented to the president of the United 
States. If he approve he shall sign it, 
but if not he shall return it, with his 
objections to that house in which it 



The Constitution as signed. 

three days, nor to any other Place than 
that in which the two Houses shall be 
sitting. 

Section 6. The Senators and Repre- 
sentatives shall receive a Compensation 
for their Services, to be ascertained by 
Law, and paid out of the Treasury of 
the United States. They shall in all 
Cases, except Treason, Felony and 
Breach of the Peace, be privileged from 
Arrest during their Attendance at the 
Session of their respective Houses, and 
in going to and returning from the 
same ; and for any Speech or Debate 
in either House, they shall not be ques- 
tioned in any other Place. 

No Senator or Representative shall, 
during the Time for which he was 
elected, be appointed to any civil Office 
under the Authority of the United 
States, which shall have been created, 
or the Emoluments whereof shall have 
been encreased during such time, and 
no Person holding any Office under the 
United States, shall be a Member of 
either House during his Continuance in 
Office. 

Section 7. 



J 



All Bills for raising Revenue shall 
originate in the House of Representa- 
tives ; but the Senate may propose or 
concur with Amendments as on other 
Bills. 

Every Bill which shall have passed 
the House of Representatives and the 
Senate, shall, before it become a Law, 
be presented to the President of the 
United States ; If he approve he shall 
sign it, but if not he shall return it, 
with his Objections to that House in 



APPENDIX 



557 



Report of the Committee on Style. 

shall have originated, who shall enter 
the objections at large on their journal, 
and proceed to reconsider it. If after 
such reconsideration two-thirds of that 
house shall agree to pass the bill, it 
shall be sent, together with the objec- 
tions, to the other house, by which it 
shall likewise be reconsidered, and if 
approved by two-thirds of that house, it 
shall become a law. But in all such 
cases the votes of both houses shall be 
determined by yeas and nays, and the 
names of the persons voting for and 
against the bill shall be entered on the 
journal of each house respectively. If 
any bill shall not be returned by the 
President within ten days (Sundays ex- 
cepted) after it shall have been pre- 
sented to him, the same shall be a law, 
in like manner as if he had signed it, 
unless the Congress by their adjourn- 
ment prevent its return, in which case 
it shall not be a law. 

(c) Every order, resolution, or vote to 
which the concurrence of the Senate 
and House of Representatives may be 
necessary (except on a question of ad- 
journment) shall be presented to the 
President of the United States ; and be- 
fore the same shall take effect, shall be 
approved by him, or, being disapproved 
by him, shall be repassed by three- 
fourths of the Senate and House of 
Representatives, according to the rules 
and limitations prescribed in the case 
of a bill. 

Sect. 8. The Congress may by joint 
ballot appoint a treasurer. They shall 
have power 

(a) To lay and collect taxes, duties, 
imposts and excises ; to pay the debts 
and provide for the common defence and 
general welfare of the United States. 



The Constitution as signed. 

which it shall have originated, who 
shall enter the Objections at large on 
their Journal, and proceed to reconsider 
it. If after such Reconsideration two 
thirds of that House shall agree to pass 
the Bill, it shall be sent, together with 
the Objections, to the other House, by 
which it shall likewise be reconsidered, 
and if approved by two thirds of that 
House, it shall become a law. But in 
all such Cases the Votes of both Houses 
shall be determined by yeas and Nays, 
and the Names of the Persons voting 
for and against the Bill shall be entered 
on the Journal of each House respec- 
tively. If any Bill shall not be returned 
by the" President within ten Days (Sun- 
days excepted) after it shall have been 
presented to him, the Same shall be a 
Law, in Hke Manner as if he had signed 
it, unless the Congress by their Ad- 
journment prevent its Return, in which 
Case it shall not be a Law. 

Every Order, Resolution, or Vote to 
which the Concurrence of the Senate 
and House of Representatives may be 
necessary (except on a question of Ad- 
journment) shall be present64 to the 
President of the United States ; and be- 
fore the Same shall take Effect, shall 
be approved by him, or being disap- 
proved by him, shall be repassed by 
two thirds of the Senate and House of 
Representatives, according to the Rules 
and Limitations prescribed in the Case 
of a Bill. 

Section 8. The Congress shall have 
Power 

To lay and collect Taxes, Duties, 
Imposts and Excises, to pay the Debts 
and provide for the common Defence 
and general Welfare of the United 



558 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 



(b) To borrow money on. the credit 
of the United States. 

(c) To regulate commerce with for- 
eign nations, among the several states, 
and with the Indian tribes. 

(d) To establish an uniform rule of 
naturalization, and uniform laws on the 
subject of bankruptcies throughout the 
United States. 

(e) To coin money, regulate the value 
thereof, and of foreign coin, and fix 
the standard of weights and measures. 

(f ) To provide for the punishment of 
counterfeiting the securities and cur- 
rent coin of the United States. 

(g) To establish post offices and post 
roads. 

(i) To promote the progress of science 
and useful arts, by securing for limited 
times to authors and inventors the ex- 
clusive right to their respective writings 
and discoveries. 

(J) To constitute tribunals inferior to 
the supreme court. 

(k) To define and punish piracies and 
felonies committed on the high seas, 
and punish offences against the law of 
nations. 

(1) To declare war, grant letters of 
marque and reprisal, and make rules 
concerning captures on land and water. 

(m) To raise and support armies : but 
no appropriations of money to that use 
shall be for a longer term than two 
years. 

(n) To provide and maintain a navy. 

(o) To make rules for the govern- 
ment and regulation of the land and 
naval forces. 



The Constitution as signed. 

States ; but all Duties, Imposts and Ex- 
cises shall be uniform throughout the 
United States ; 

To borrow Money on the credit of 
the United States; 

To regulate Commerce with foreign 
Nations, and among the several States, 
and with the Indian Tribes ; 

To establish an uniform Rule of Nat- 
uralization, and uniform Laws on the 
subject of Bankruptcies throughout the 
United States; 

To coin Money, regulate the Value 
thereof, and of foreign Coin, and fix 
the Standard of Weights and Measures ; 

To provide for the Punishment of 
counterfeiting the Securities and cur- 
rent Coin of the United States; 

To establish Post Offices and post 
Roads ; 

To promote the Progress of Science 
and useful Arts, by securing for lim- 
ited Times to Authors and Inventors 
the exclusive Right to their respective 
Writings and Discoveries ; 

To constitute Tribunals inferior to 
the supreme Court; 

To define and punish Piracies and 
Felonies committed on the high Seas, 
and Offences against the Law of Na- 
tions ; 

To declare War, grant Letters of 
Marque and Reprisal, and make Rules 
concerning Captures on Land and 
Water ; 

To raise and support Armies, but no 
Appropriation of Money to that Use 
shall be for a longer Term than two 
Years ; 

To provide and maintain a Navy; 

To make Rules for the Government 
and Regulation of the land and naval 
Forces ; 



APPENDIX 



559 



Report of the Committee on Style. 

(p) To provide for calling forth the 
militia to execute the laws of the union, 
suppress insurrections and repel inva- 
sions. 

(q) To provide for organizing, arm- 
ing and disciplining the militia, and for 
governing such part of them as may be 
employed in the service of the United 
States, reserving to the States respec- 
tively, the appointment of the officers, 
and the authority of training the militia 
according to the discipline prescribed 
by Congress. 

(r) To exercise exclusive legislation in 
all cases whatsoever, over such district 
(not exceeding ten miles square) as 
jnay, by cession of particular States, arid 
the acceptance of Congress, become the 
seat of the government of the United 
States, and to exercise like authority 
over all places purchased by the consent 
of the legislature of the state in which 
the same shall be, for the erection of 
forts, magazines, arsenals, dock-yards, 
and other needful buildings — And — 

(s) To make all laws which shall be 
necessary and proper for carrying into 
•execution the foregoing powers, and all 
other powers vested by this constitu- 
tion in the government of the United 
States, or in any department or officer 
thereof. 

Sect. 9. The migration or importa- 
tion of such persons as the several states 
now existing shall think proper to ad- 
mit, shall not be prohibited by the Con- 
gress prior to the year one thousand 
•eight hundred and eight, but a tax or 
duty may be imposed on such importa- 
tion, not exceeding ten dollars for each 
person. 

(a) The privilege of the writ of 



The Constitution as signed. 

To provide for calling forth the Mi- 
litia to execute the Laws of the Union, 
suppress Insurrections and repel Inva- 
sions ; 

To provide for organizing, arming, 
and disciplining, the Militia, and for 
governing such Part of them as may be 
employed in the Service of the United 
States, reserving to the States respec- 
tively, the Appointment of the Officers, 
and the Authority of training the Mi- 
litia according to the discipline pre- 
scribed by Congress ; 

To exercise exclusive Legislation in 
all Cases whatsoever, over such District 
(not exceeding ten Miles square) as 
may, by Cession of particular States, 
and the Acceptance of Congress, be- 
come the Seat of the Government of 
the United States, and to exercise Hke 
Authority over all Places purchased by 
the Consent of the Legislature of the 
State in which the Same shall be, for 
the Erection of Forts, Magazines, Ar- 
senals, dock- Yards, and other needful 
Buildings ; — And 

To make all Laws which shall be nec- 
essary and proper for carrying into 
Execution the foregoing Powers, and 
all other Powers vested by this Consti- 
tution in the Government of the United 
States, or in any Department or Officer 
thereof. 

Section 9. The Migration or Im- 
portation of such Persons as any of the 
States now existing shall think proper 
to admit, shall not be prohibited by the 
Congress prior to the Year one thousand 
eight hundred and eight, but a Tax or 
duty may be imposed on such Importa- 
tion, not exceeding ten dollars for each 
Person. 

The Privilege of the Writ of Habeas 



560 



THE UNITED STATES : A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 

habeas corpus shall not be suspended, 
unless when in cases of rebellion or in- 
vasion the public safety may require it. 

(b) No bill of attainder shall be 
passed, nor any ex post facto law. 

(c) No capitation tax shall be laid, 
unless in proportion to the census herein 
before directed to be taken. 

(d) No tax or duty shall be laid on 
articles exported from any state. 



(e) No money shall be drawn from 
the treasury, but in consequence of ap- 
propriations made by law. 



(f ) No title of nobility shall be granted 
by the United States. And no person 
holding any office of profit or trust un- 
der them, shall, without the consent of 
the Congress, accept of any present, 
emolument, office, or title, of any kind 
whatever, from any king, prince, or 
foreign state. 

Sect. 10. No state shall coin money, 
nor emit bills of credit, nor make any 
thing but gold or silver coin a tender 
in payment of debts, nor pass any bill 
of attainder, nor ex post facto laws, 
nor laws altering or impairing the obli- 
gation of contracts ; nor grant letters 
of marque and reprisal, nor enter into 
any treaty, alliance, or confederation, 
nor grant any title of nobility. 

(a) No state shall, without the consent 
of Congress, lay imposts or duties on 



The Constitution ,as signed. 

Corpus shall not be suspended, unless 
when in Cases of Rebellion or Invasion 
the public Safety may require it. 

No bill of Attainder or ex post facto 
Law shall be passed. 

No Capitation, or other direct. Tax 
shall be laid, unless in Proportion to 
the Census or Enumeration herein be- 
fore directed to be taken. 

No Tax or Duty shall be laid on Ar- 
ticles exported from any State. 

No Preference shall be given by any 
Regulation of Commerce or Revenue to 
the Ports of one State over those of 
another: nor shall Vessels bound to, or 
from, one State, be obliged to enter, 
clear, or pay Duties in another. 

No Money shall be drawn from the 
Treasury, but in Consequence of Appro- 
priations made by Law ; and a regular 
Statement and Account of the Receipts 
and Expenditures of all public Money 
shall be published from time to time. 

No Title of Nobility shall be granted 
by the United States : And no Person 
holding any Office of Profit or Trust 
under them, shall, without the Consent 
of the Congress, accept of any present. 
Emolument, Office, or Title, of any kind 
whatever, from any King, Prince, or 
foreign State. 

Section 10. No State shall enter into 
any Treaty, Alliance, or Confederation - 
grant Letters of Marque and Reprisal j 
coin Money ; emit Bills of Credit ; make 
any Thing but gold and silver Coin a 
Tender in Payment of Debts ; pass any 
Bill of Attainder, ex post facto Law, or 
Law impairing the Obligation of Con- 
tracts, or grant any Title of Nobility. 

No State shall, without the Consent 
of the Congress, lay any Imposts or 






APPENDIX 



561 



Report of the Committee on Style. 

imports or exports, nor with such con- 
sent, but to the use of the treasury of 
the United States: nor keep troops 
nor ships of war in time of peace, nor 
enter into any agreement or compact 
with another state, nor with any for- 
eign power. Nor engage in any war, 
unless it shall be actually invaded by 
enemies, or the danger of invasion be so 
iminent, as not to admit of delay until 
the Congress can be consulted. 



II 

Sect. 1. The executive power shall 
be vested in a president of the United 
States of America. He shall hold his 
office during the term of four years, 
and, altogether with the vice-president, 
chosen for the same term, be elected in 
the following manner: 

(a) Each state shall appoint, in such 
manner as the legislature thereof may 
direct, a number of electors, equal to 
the whole number of senators and rep- 
resentatives to which the state may be 
entitled in Congress : but no senator or 
representative shall be appointed an 
elector, nor any person holding an of- 
fice of trust or profit under the United 
States. 

(b) The electors shall meet in their 
respective states, and vote by ballot for 
two persons, of whom one at least shall 
not be an inhabitant of the same state 
with themselves. And they shall make 
a list of all the persons voted for, and 
of the number of votes for each ; which 



The Constitution as signed. 

Duties on Imports or Exports, except 
what may be absolutely necessary for 
executing it's inspection Laws : and the 
net Produce of all Duties and Imposts, 
laid by any State on Imports or Ex- 
ports, shall be for the Use of the Treas- 
ury of the United States; and all such 
Laws shall be subject to the Revision 
and Controul of the Congress. 

No State shall, without the Consent 
of Congress, lay any Duty of Tonnage, 
keep Troops, or Ships of War in time 
of Peace, enter into any Agreement or 
Compact with another State, or with a 
foreign Power, or engage in War, un- 
less actually invaded, or in such immi- 
nent Danger as will not admit of delay. 

Article II 

Section 1. The executive Power 
shall be vested in a President of the 
United States of America. He shall 
hold his Office during the Term of four 
Years, and, together with the Vice Pres-> 
ident, chosen for the same Term, be 
elected, as follows 

Each State shall appoint, in such 
Manner as the Legislature thereof may 
direct, a Number of Electors, equal to 
the whole Number of Senators and Rep- 
resentatives to which the State may be 
entitled in the Congress : but no Senator 
or Representative, or Person holding an 
Office of Trust or Profit under the 
United States, shall be appointed an 
Elector. 

The Electors shall meet in their re- 
spective States, and vote by Ballot for 
two Persons, of whom one at least shall 
not be an Inhabitant of the same State 
with themselves. And they shall make 
a Lis'i of all the Persons voted for, and 
of the Number of Votes for each ; which 



562 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 

list they shall sign and certify, and 
transmit sealed to the seat of the gen- 
eral government, directed to the presi- 
dent of the senate. The president of 
the senate shall in the presence of the 
senate and house of representatives 
open all the certificates, and the votes 
shall then be counted. The person 
having the greatest number of votes 
shall be the president, if such number 
be a majority of the whole number of 
electors appointed; and if there be 
more than one whO' have such major- 
ity, and have an equal number of votes, 
then the house of representatives shall 
immediately chuse by ballot one of 
them for president; and if no person 
have a majority, then from the five 
highest on the list the said house shall 
in like manner choose the president. 
But in choosing the president, the votes 
shall be taken by states and not per 
capita, the representation from each 
state having one vote. A quorum for 
this purpose shall consist of a member 
or members from two-thirds of the 
states, and a majority of all the states 
shall be necessary to a choice. In every 
case, after the choice of the president 
by the representatives, the person hav- 
ing the greatest number of votes of the 
electors shall be the vice-president. 
But if there should remain two or more 
who have equal votes, the senate shall 
choose from them by ballot the vice- 
president. 

(c) The Congress may determine the 
time of chusing the electors, and the 
time in which they shall give their 
votes ; but the election shall be on the 
same day throughout the United States. 

(d) No person except a natural born 
citizen, or a citizen of the United States, 



The Constitution as signed. 

List they shall sign and certify, and 
transmit sealed to the Seat of the Gov- 
ernment of the United States, directed 
to the President of the Senate. The 
President of the Senate shall, in the 
Presence of the Senate and House of 
Representatives, open all the Certifi' 
cates, and the Votes shall then be 
counted. The Person having the great- 
est Number of Votes shall be the Presi- 
dent, if such Number be a Majority of 
the whole Number of Electors ap- 
pointed; and if there be more than one 
who have such Majority, and have an 
equal Number of Votes, then the House 
of Representatives shall immediately 
chuse by Ballot one of them for Presi- 
dent ; and if no Person have a Majority, 
then from the five highest on the List 
the said House shall in like Manner 
chuse the President. But in chusing the 
President, the Votes shall be taken by 
States, the Representation from each 
State having one Vote ; A quorum for 
this Purpose shall consist of a Member 
or Members from two thirds of the 
States, and a Majority of all the States 
shall .be necessary to a Choice. In 
every Case, after the Choice of the 
President, the Person having the great- 
est Number of Votes of the Electors 
shall be the Vice President. But if 
there should remain two or more who 
have equal Votes, the Senate shall chuse 
from them by Ballot the Vice President. 

The Congress may determine the 
Time of chusing the Electors, and the 
Day on which they shall give their 
Votes ; which Day shall be the same 
throughout the United States. 

No Person except a natural born Citi- 
zen, or a Citizen of the United States, 



563 



Report of the Committee on Style. 

at the time of the adoption of this con- 
stitution, shall be eligible to the office of 
president ; neither shall any person be 
eligible to that office who shall not have 
attained to the age of thirty-five years, 
and been fourteen years a resident 
within the United States. 

(e) In case of the removal of the 
president from office, or of his death, 
resignation, or inability to discharge the 
powers and duties of the said office, the 
same shall devolve on the vice-presi- 
dent, and the Congress may by law 
provide for the case of removal, death, 
resignation or inability, both of the 
president and vice-president, declaring 
what officer shall then act as president, 
and such officer shall act accordingly, 
until the disability be removed, or the 
period for chusing another president 
arrive. 

(0 The president shall, at stated 
times, receive a fixed compensation for 
his services, which shall neither be en- 
creased nor diminished during the pe- 
riod for which he shall have been 
elected. 



(g) Before he enter on the execution 
of his office, he shall take the following 
oath or affirmation : " I , do sol- 
emnly swear (or affirm) that I will 
faithfully execute the office of presi- 
dent of the United States, and will to 
the best of my judgment and power, 
preserve, protect and defend the con- 
stitution of the United States." 

Sect. 2. The president shall be 
commander in chief of the army and 
navy of the United States, and of the 
mihtia of the several States: he may 
require the opinion, in writing, of the 



The Constitution as signe'd. 

at the time of the Adoption of this Con- 
stitution, shall be eligible to the Office 
of President; neither shall any Person 
be eligible to that Office who shall not 
have attained to the Age of thirty five 
Years, and been fourteen Years a Resi- 
dent within the United States. 

In Case of the Removal of the Presi- 
dent from Office, or of his Death, Res- 
ignation, or Inability to discharge the 
Powers and Duties of the said Office, 
the Same shall devolve on the Vice 
President, and the Congress may by 
Law provide for the Case of Removal, 
Death, Resignation or Inability, both 
of the President and Vice President, 
declaring what Officer shall then act as 
President, and such Officer shall act ac- 
cordingly, until the DisabiHty be re- 
moved, or a President shall be elected. 

The President shall, at stated Times, 
receive for his Services, a Compensa- 
tion, which shall neither be encreased 
nor diminished during- the Period for 
which he shall have been elected, and he 
shall not receive within that Period any 
other Emolument from the United 
States, or any of them. 

Before he enter on the Execution of 
his Office, he shall take the following 
Oath or Affirmation : — " I do solemnly 
swear (or affirm) that I will faithfully 
execute the Office of President of the 
United States, and will to the best of 
my Ability, preserve, protect and de- 
fend the Constitution of the United 
States." 

Section 2. The President shall be 
Commander in Chief of the Army and 
Navy of the United States and of the 
Militia of the several States, when 
called into the actual Service of the 



564 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style. 

principal officer in each of the execu- 
tive departments, upon any subject re- 
lating to the duties of their respective 
offices, when called into the actual serv- 
ice of the United States, and he shall 
have poM^er to grant reprieves and par- 
dons for offences against the United 
States, except in cases of impeachment. 

(a) He shall have power, by and with 
the advice and consent of the senate, 
to make treaties, provided two-thirds of 
the senators present concur; and he 
shall nominate, and by and with the ad- 
vice and consent of the senate, shall ap- 
point ambassadors, other public min- 
isters and consuls, judges of the su- 
preme court, and all other officers of 
the United States, whose appointments 
are not herein otherwise provided for. 



(b) The president shall have power to 
fill up all vacancies that may happen 
during the recess of the senate, by 
granting commissions which shall ex- 
pire at the end of their next session. 

Sect. 3. He shall from time to time 
give to the Congress information of the 
state of the union,And recommend to 
their consideration such measures as 
he shall judge necessary and expedient: 
he may, on extraordinary occasions, 
convene both houses, or either of them, 
and in case of disagreement between 
them, with respect to the time of ad- 
journment, he may adjourn them to 
such time as he shall think proper: he 
shall receive ambassadors and other 



The Constitution as signed. 

United States; he may require the 
Opinion, in writing, of the principal 
Officer in each of the executive Depart- 
ments, upon any Subject relating to the 
Duties of their respective Offices, and 
he shall have Power to grant Reprieves 
and Pardons for Offences against the 
United States, except in Cases of Im- 
peachment. 

He shall have Power, by and with 
the Advice and Consent of the Senate, 
to make Treaties, provided two thirds 
of the Senators present concur ; and he 
shall nominate, and by and with the Ad- 
vice and Consent of the Senate, shall 
appoint Ambassadors, other public Min- 
isters and Consuls, Judges of the su- 
preme Court, and all other Officers of 
the United States, whose Appointments 
are not herein otherwise provided for, 
and which shall be established by Law : 
but the Congress may by law vest the 
Appointment of such inferior Officers, 
as they think proper, in the President 
alone, in the Courts of Law, or in the 
Heads of Departments. 

The President shall have Power to 
fill up all Vacancies that may happen 
during the Recess of the Senate, by 
granting Commissions which shall ex- 
pire at the End of their next Session. 

Section 3. He shall from time to 
time give to the Congress Information 
of the State of the Union, and recom- 
mend to their Consideration such Meas- 
ures as he shall judge necessary and 
expedient; he may, on extraordinary 
Occasions, convene both Houses, or 
either of them, and in Case of Disagree- 
ment between them, with Respect to the 
Time of Adjournment, he may adjourn 
them to such Time as he shall think 
proper; he shall receive Ambassadors 



565 



Report of the Committee on Style. 

public ministers : he shall take care that 
the laws be faithfully executed, and 
shall commission all the officers of the 
United States. 

Sect. 4. The president, vice-presi- 
dent, and all civil officers of the United 
States, shall be removed from office on 
impeachment for, and conviction of 
treason, bribery, or other high crimes 
and misdemeanors. 

Ill 

Sect. 1. The judicial power of the 
United States, both in law and equity, 
shall be vested in one supreme court, 
and in such inferor courts as the Con- 
gress may from time to time ordain and 
establish. The judges, both of the su- 
preme and inferior courts, shall hold 
their offices during good behaviour, and 
shall, at stated times, receive for their 
services, a compensation, which shall 
not be diminished during their continu- 
ance in office. 

Sect. 2. The judicial power shall ex- 
tend to all cases, both in law and equity, 
arising under this constitution, the laws 
of the United States, and treaties made, 
or which shall be made, under their au- 
thority. To all cases affecting ambas- 
sadors, other public ministers and con- 
suls. To all cases of admiralty and 
maritime jurisdiction. To controver- 
sies to which the United States shall be 
a party. To controversies between two 
or more States; between a state and 
citizens of another state; between citi- 
zens of different States ; between citi- 
zens of the same state claiming lands 
under grants of different States, and 
between a state, or the citizens thereof, 
and foreign States, citizens or subjects. 



The Constitution as signed. 

and other public Ministers ; he shall take 
Care that the Laws be faithfully exe- 
cuted, and shall Commission all the 
Officers of the United States. 

Section 4. The President, Vice Pres- 
ident and all civil Officers of the United 
States^ shall be removed from Office on 
Impeachment for, and Conviction of, 
Treason, Bribery, or other high Crimes 
and Misdemeanors. 

Article III 

Section 1. The judicial Power of the 
United States, shall be vested in one 
supreme Court, and in such inferior 
Courts as the Congress may from time 
to time ordain and establish. The 
Judges, both of the supreme and infe- 
rior Courts, shall hold their Offices dur- 
ing good Behaviour, and shall, at stated 
Times, receive for their Services, a 
Compensation, which shall not be di- 
minished during their Continuance in 
Office. 

Section 2. The judicial Power shall 
extend to all Cases, in Law and Equity, 
arising under this Constitution, the 
Laws of the United States, and Trea- 
ties made, or which shall be made, un- 
der their Authority ; — to all Cases af- 
fecting Ambassadors, other public Min- 
isters and Consuls ; — to all Cases of 
admiralty and maritime Jurisdiction ; — 
to Controversies to which the United 
States shall be a Party; — to Contro- 
versies between two or more States ; — 
between a State and Citizens of another 
State ; — between Citizens of different 
States, — between Citizens of the same 
State claiming Lands under Grants of 
different States, and between a State, 
or the Citizens thereof, and foreign 
States, Citizens or Subjects. 



566 



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Report of the Committee on Style. 

In cases affecting ambassadors, other 
public ministers and consuls, and 
those in which a state shall be a party, 
the supreme court shall have original 
jurisdiction. In all the other cases be- 
fore mentioned, the supreme court shall 
have appellate jurisdiction, both as to 
law and fact, with such exceptions, and 
under such regulations as the Congress 
shall make. 

The trial of all crimes, except in 
cases of impeachment, shall be by jury ; 
and such trial shall be held in the state 
where the said crimes shall have been 
committed ; but when not committed 
within any state, the trial shall be at 
such place or places as the Congress 
may by law have directed. 

Sect. 3. Treason against the United 
States, shall consist only in levying war 
against them, or in adhering to their 
enemies, giving them aid and comfort. 
No person shall be convicted of treason 
unless on the testimony of two wit- 
nesses to the same overt act, or on con- 
fession in open court. 

The Congress shall have power to de- 
clare the punishment of treason, but no 
attainder of treason shall work corrup- 
tion of blood nor forfeiture, except 
during the life of the person attainted. 



IV 

Sect. 1. Full faith and credit shall 
be given in each state to the public acts, 
records, and judicial proceedings of 
every other state. And the Congress 
may by general laws prescribe the man- 
ner in which such acts, records and pro- 
ceedings shall be proved, and the effect 
thereof. 

Sect. 2. The citizens of each state 



The Constitution as signed. 

In all Cases affecting Ambassadors, 
other public Ministers and Consuls, and 
those in which a State shall be Party, 
the supreme Court shall have original 
Jurisdiction. In all the other Cases be- 
fore mentioned, the Supreme Court 
shall have appellate Jurisdiction, both 
as to Law and Fact, with such Excep- 
tions, and under such regulations as the 
Congress shall make. 

The Trial of all Crimes, except in 
Cases of Impeachment, shall be by Jury ; 
and such Trial shall be held in the 
State where the said Crimes shall have 
been committed; but when not com- 
mitted within any State, the Trial shall 
be at such Place or Places as the Con- 
gress may by Law have directed. 

Section 3. Treason against the 
United States, shall consist only in levy- 
ing War against them, or in adhering 
to their Enemies, giving them Aid and 
Comfort. No Person shall be convicted 
of Treason unless on the Testimony of 
two Witnesses to the same overt Act, 
or on Confession in open Court. 

The Congress shall have Power to 
declare the Punishment of Treason, but 
no Attainder of Treason shall work 
Corruption of Blood, or Forfeiture ex- 
cept during the Life of the Person 
attainted. 

Article IV 

Section 1. Full Faith and Credit 
shall be given in each State to the pub- 
lic Acts, Records, and judicial Proceed- 
ings of every other State. And the 
Congress may by general Laws pre- 
scribe the Manner in which such Acts, 
Records and Proceedings shall be 
proved, and the Effect thereof. 

Section 2. The Citizens of each 



APPENDIX 



567 



Report of the Committee on Style. 

shall be entitled to all privileges and 
immunities of citizens in the several 
states. 

A person charged in any state with 
treason, felony, or other crime, who 
shall flee from justice, and be found in 
another state, shall on demand of the 
executive authority of the state from 
which he fled be delivered up, and re- 
moved to the state having jurisdiction 
of the crime. 

No person legally held to service or 
labour in one state, escaping into an- 
other, shall in consequence of regula- 
tions subsisting therein be discharged 
from such service or labor, but shall be 
delivered up on claim of the party to 
whom such service or labour may be 
due. 

Sect. 3. New states may be admitted 
by the Congress into this union ; but no 
new state shall be formed or erected 
within the jurisdiction of any other 
state ; nor any state be formed by the 
junction of two or more states, or parts 
of states, without the consent of the leg- 
isiatures of the states concerned as well 
as of the Congress. 

The Congress shall have power to dis- 
pose of and make all needful rules and 
regulations respecting the territory or 
other property belonging to the United 
States : and nothing in this Constitu- 
tion shall be so construed as to preju- 
dice any claims of the United States, 
or of any particular state. 

Sect. 4. The United States shall 
guarantee to every state in this union a 
Republican form of government, and 
shall protect each of them against in- 
vasion ; and on application of the legis- 
lature or executive, against domestic 
violence. 



The Constitution as signed. 

State shall be entitled to all Privileges 
and Immunities of Citizens in the sev- 
eral States, 

A Person charged in any State with 
Treason, Felony, or other Crime, who 
shall flee from Justice, and be found in 
another State, shall on Demand of the 
executive Authority of the State from 
which he fled, be delivered up, to be re- 
moved to the State having Jurisdiction 
of the Crime. 

No Person held to Service or Labour 
in one State, under the Laws thereof, 
escaping into another, shall, in Conse- 
quence of any Law or Regulations 
therein, be discharged from such Serv- 
ice or Labour, but shall be delivered up 
on Claim of the Party to whom such 
Service or Labour may be due. 

Section 3. New States may be ad- 
mitted by the Congress into this Union ; 
but no new State shall be formed or 
erected within the Jurisdiction of any 
other State; nor any State be formed 
by the Junction of tw0r or more States, 
or Parts of States, without the Consent 
of the Legislatures of the States con- 
cerned as well as of the Congress. 

The Congress shall have Power to 
dispose of and make all needful Rules 
and Regulations respecting the Terri- 
tory or other Property belonging to the 
United States ; and nothing in this Con- 
stitution shall be so construed as to 
prejudice any Claims of the United 
States, or of any particular State. 

Section 4. The United States shall 
guarantee to every State in this Union 
a Republican Form of Government, and 
shall protect each of them against Inva- 
sion ; and on Application of the Legis- 
lature, or of the Executive (when the 
Legislature cannot be convened) against 



568 



THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



Report of the Committee on Style 



The Congress, whenever two-thirds 
of both houses shall deem necessary, or 
on the application of two-thirds of the 
legislatures of the several states, shall 
propose amendments to this constitu- 
tion, which shall be valid to all intents 
and purposes, as part thereof, when the 
same shall have been ratified by three- 
fourths at least of the legislatures of 
the several states, or by conventions in 
three-fourths thereof, as the one or the 
other mode of ratification may be pro- 
posed by the Congress : Provided, that 
no amendment which may be made 
prior to the year 1808 shall in any man- 
ner affect the and section of 

article 



VI 

All debts contracted and engagements 
entered into before the adoption of this 
Constitution shall be as valid against 
the United States under this Constitu- 
tion as under the confederation. 

This constitution, and the laws of the 
United States which shall be made in 
pursuance thereof; and all treaties 
made, or which shall be made, under the 
authority of the United States, shall be 
the supreme law of the land ; and the 
judges in every state shall be bound 
thereby, any thing in the constitution 
or laws of any state to the contrary 
notwithstanding. 



The Constitution as 
domestic Violence. 

Article V 

The Congress, whenever two thirds 
of both Houses shall deem it necessary, 
shall propose Amendments to this Con- 
stitution, or, on the Application of the 
Legislatures of two thirds of the sev- 
eral States, shall call a Convention for 
proposing Amendments, which, in either 
case, shall be valid to all Intents and 
Purposes, as Part of this Constitution, 
when ratified by the Legislatures of 
three fourths of the several States, or 
by Conventions in three fourths thereof, 
as the one or the other Mode of Rati- 
fication may be proposed by the Con- 
gress ; Provided that no Amendment 
which may be made prior to the Year 
One thousand eight hundred and eight 
shall in any Manner affect the first and 
fourth Clauses in the Ninth Section of 
the first Article ; and that no State, with- 
out its Consent, shall be deprived of it's 
equal Suffrage in the Senate. 

Article VI 

All Debts contracted and Engage- 
ments entered into, before the Adoption 
of this Constitution, shall be as valid 
against the United States under this 
Constitution, as under the Confedera- 
tion. 

This Constitution, and the Laws of 
the United States which shall be made 
in Pursuance thereof ; and all Treaties 
made, or which shall be made, under the 
Authority of the United States, shall 
be the supreme Law of the Land ; and 
the Judges in every State shall be bound 
thereby, any Thing in the Constitution 
or Laws of any State to the Contrary 
notwithstanding. 



569 



Report of the Committee on Style. 

The senators and representatives be- 
forementioned, and the members of the 
several state legislatures, and all execu- 
tive and judicial officers, both of -the 
United States and of the several States, 
shall be bound by oath or affirmation, to 
support this constitution ; but no reli- 
gious test shall ever be required as a 
qualification to any office or public trust 
under the United States. 

VII 

The ratification of the conventions of 
nine States, shall be sufficient for the 
establishment of this constitution be- 
tween the States so ratifying the same. 



The Constitution as signed. 

The Senators and Representatives 
before mentioned, and the Members of 
the several State Legislatures, and all 
executive and judicial Officers, both of 
the United States and of the several 
States, shall be bound by Oath or Af- 
firmation, to support this Constitution; 
but no religious Test shall ever be re- 
quired as a Qualification to any Office 
or public Trust under the United States. 

Article VII 

The Ratification of the Conventions 
of nine States, shall be sufficient for the 
Establishment of this Constitution be- 
tween the States so ratifying the Same. 



570 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 



X. LETTER TRANSMITTING THE CONSTITUTION TO CONGRESS, 
SEPTEMBER 17, 1787.^ 

We have now the honor to submit to the consideration of the United States 
in Congress assembled, that Constitution which has appeared to us the most 
adviseable. 

The friends of our country have long seen and desired, that the power of 
making war, peace, and treaties, that of levying money and regulating commerce, 
and the correspondent executive and judicial authorities should be fully and 
effectually vested in the general government of the Union: But the impropriety 
of delegating such extensive trust to one body of men is evident — Hence results 
the necessity of a different organization. 

It is obviously impracticable in the federal government of these states, to 
secure all rights of independent sovereignty to each, and yet provide for the 
interest and safety of all : Individuals entering into society, must give up a share 
of liberty to preserve the rest. The magnitude of the sacrifice must depend as 
well on situation and circumstances, as on the object to be obtained. It is at all 
times difficult to draw with precision the line between those rights which must be 
surrendered, and those which may be reserved : and on the present occasion this 
difificulty was encreased by a difference among the several states as to their situ- 
ation, extent, habits, and particular interests. 

In all our deliberations on this subject we kept steadily in our view, that which 
appears to us the greatest interest of every true American, the consolidation of 
our Union, in which is involved our prosperity, felicity, safety, perhaps our na- 
tional existence. This importa' •: consideration, seriously and deeply impressed 
on our minds, led each state in the Convention to be less rigid on points of inferior 
magnitude, than might have been otherwise expected; and thus the Constitution, 
which we now present, is the result of a spirit of amity, and of that mutual 
deference and concession which the peculiarity of our political situation rendered 
indispensible. 

That it will meet the full and entire approbation of every state is not perhaps 
to be expected ; but each will doubtless consider, that had her interest been alone 
consulted, the consequences might have been particularly disagreeable or injuri- 
ous to others ; that it is liable to as few exceptions as cotild reasonably have been 
expected, we hope and believe ; that it may promote the lasting welfare of that 
country so dear to us all, and secure her freedom and happiness, is our most 
ardent wish. 

^Documentary History, Vol. ii, pp. 1-2. 



I 



571 



XI. RESOLUTION OF THE CONVENTION, SEPTEMBER 17, 1787, 

THAT CONGRESS TRANSMIT THE CONSTITUTION TO 

THE STATES FOR RATIFICATION.^ 

Resolved, That the preceeding Constitution be laid before the United States 
in Congress assembled, and that it is the Opinion of this Convention, that it should 
afterwards be submitted to a Convention of Delegates, chosen in each State by 
the People thereof, under the Recommendation of its Legislature, for their Assent 
and Ratification ; ^ and that each Convention assenting to, and ratifying the Same, 
should give Notice thereof to the United States in Congress assembled. Resolved, 
That it is the Opinion of this Convention, that as soon as the Conventions of nine 
States shall have ratified this Constitution, the United States in Congress assem- 
bled should fix a Day on which Electors should be appointed by the States which 
shall have ratified the same, and a Day on which the Electors should assemble to 
vote for the President, and the Time and Place for commencing Proceedings 
under this Constitution. That after such Publication the Electors should be ap- 
pointed, and the Senators and Representatives elected : That the Electors should 
meet on the Day fixed for the Election of the President, and should transmit their 
Votes certified, signed, sealed and directed, as the Constitution requires, to the 
Secretary of the United States in Congress assembled, that the Senators and 
Representatives should convene at the Time and Place assigned ; that the Senators 
should appoint a President of the Senate, for the sole Purpose of receiving, open- 
ing and counting the Votes for President ; and, that after he shall be chosen, the 
Congress, together with the President, should, without Delay, proceed to exe<^ute 
this Constitution. 

By the Unanimous Order of the Convention 

G° WASHINGTON Presid' 
W. Jackson Secretary. 

^Documentary History of the Constitution, Vol. ii, pp. 20-21. 

2 In compliance with this resolution the Congress on September 28, 1787, transmitted the 
Constitution to the States, which called conventions and ratified it in the following order: 
Delaware, December 7, 1787: Pennsylvania, December 12, 1787: New Jersey, December 18, 
1787; Georgia, January 2, 1788: Connecticut, January 9. 1788: Massachusetts. February 6, 
1788; Maryland, April 28, 1788; South Carolina, MaV 23. 1788: New Hampshire, June 21, 
1788; Virginia, June 26, 1788; and New York, July 26, 1788. The President informed Con- 
gress, on January 28, 1790, that North Carolina had ratified the Constitution November 21, 
1789; and he informed Congress on June 1, 1790. that Rhode Island had ratified the Consti- 
tution May 29, 1790. Vermont, in convention, ratified the Constitution January 10, 1789, and 
was, by an act of Congress approved February 19, 1791, "received and admitted into this 
Union as a new and entire member of the United States." 



D. AMENDMENTS TO THE CONSTITUTION. 

I. THE FIRST TEN AMENDMENTS TO THE CONSTITUTION IN 
LIEU OF A BILL OF RIGHTS. 

Articles in Addition To, and Amendment Of, the Constitution of the 
United States of America, Proposed by Congress, and Ratified by the 
Legislatures of the Several States Pursuant to the Fifth Article 
of the Original Constitution. 

Article I.^ 

Congress shall make no law respecting an establishment of religion, or pro- 
hibiting the free exercises thereof ; or abridging the freedom of speech, or of the 
press ; or the right of the people peaceably to assemble, and to petition the Gov- 
eriunent for a redress of grievances. 

Article II. 

A well regulated Militia, being necessary to the security of a free State, the 
right of the people to keep and bear Arms, shall not be infringed. 

Article III. 

No Soldier shall, in time of peace be quartered in any house, without the 
consent of the Owner, nor in time of war, but in a manner to be prescribed by law. 

Article IV. 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and no 
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, 
and particularly describing the place to be searched, and the persons or things 
to be seized. 

Article V. 

No person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a Grand Jury, except in cases arising 
in the land or naval forces, or in the Militia, when in actual service in time of 
War or public danger ; nor shall any person be subject for the same offence to be 
twice put in jeopardy of life or limb ; nor shall be compelled in any Criminal Case 
to be a witness against himself, nor be deprived of life, liberty, or property, 
without due process of law; nor shall private property be taken for public use, 
without just compensation. 

1 The first ten amendments to the Constitution of the United States were proposed to the 
legislatures of the several States by the First Congress, on the 25th of September, 1789. 
They were ratified by the following States, and the notifications of ratification by the gov- 
ernors thereof were successively communicated by the President to Congress: New Jersey, 
November 20, 1789; Mar^-land, December 19, 1789; North Carolina, December 22, 1789; South 
Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; 
Pennsylvania, March 10, 1790; New York, March 21, 1790; Rhode Island, June IS, 1790; 
Vermont, November 3, 1791, and Virginia, December 15, 1791. There is no evidence on the 
journals of Congress that the legislatures of Connecticut, Georgia, and Massachusetts rati- 
fied them. 

572 



APPENDIX 



573 



Article VI. 
In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and pubHc trial, by .an impartial jury of the State and district wherein the crime 
shall have been committed, which district shall have been previously ascertained 
by law, and to be informed of the nature and cause of the accusation ; to be con- 
fronted with the witnesses against him ; to have compulsory process for obtaining 
Witnesses in his favor, and to have the Assistance of Counsel for his defence. 

Article VII. 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury 
shall be otherwise re-examined in any Court of the United States, than accord- 
ing to the rules of the common law. 

Article VIII. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

Article IX. 

The enumeration in the Constitution, of certain rights, shall not be construed 
to deny or disparage others retained by the people. 

Article X. 

The powers not delegated to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States respectively, or to the people. 



II. SUBSEQUENT AMENDMENTS TO THE CONSTITUTION. 

Article XI.^ • 

The Judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens or Subjects of any Foreign 
State. 

Article XII. ^ 

The Electors shall meet in their respective states, and vote by ballot for Presi- 
dent and Vice-President, one of whom, at least, shall not be an inhabitant of the 
same state with themselves ; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice-President, and they 
shall make distinct lists of all persons voted for as President, and of all persons 

1 The eleventh amendment was declared in a message from the President \o Congress, 
dated the 8th of January, 1798, to have been ratified by the legislatures of three-fourths of 
the States. 

2 The twelfth amendment, in lieu of the original third paragraph of the first section of 
the second article, was declared in a proclamation of the Secretary of State, dated the 25th 
of September, 1804, to have been ratified by the legislatures of three-fourths of the States. 



574 THE UNITED STATES: A STUDY IN INTERNATIONAL ORGANIZATION 

voted for as Vice-President, and of the number of votes for each, which Usts they 
shall sign and certify, and transmit sealed to the seat of the government of the 
United States, directed to the President of the Senate ; — The President of the 
Senate shall, in the presence of the Senate and House of Representatives, open 
all the certificates and the votes shall then be counted ; — The person having the 
greatest number of votes for President, shall be the President, if such number be 
a majority of the whole number of Electors appointed; and if no person have 
such majority, then from the persons having the highest numbers not exceeding 
three on the list of those voted for as President, the House of Representatives 
shall choose immediately, by ballot, the President. But in choosing the President, 
the votes shall be taken by states, the representation from each state having one 
vote; a quorum for this purpose shall consist of a member or members from 
two-thirds of the states, and a majority of all the states shall be necessary to a 
choice. And if the House of Representatives shall not choose a President when- 
ever the right of choice shall devolve upon them, before the fourth day of March 
next following, then the Vice-President shall act as President, as in the case of 
the death or other constitutional disability of the President. — Th-e person having 
the greatest number of votes as Vice-President, shall be the Vice-President, if 
such number be a majority of the whole number of Electors appointed, and if 
no person have a majority, then from the two highest numbers on the list, the 
Senate shall choose the Vice-President ; a quorum for the purpose shall consist of 
two-thirds of the whole number of Senators, and a majority of the whole number 
shall be necessary to a choice. But no person constitutionally ineligible to the 
office of President shall be eligible to that of Vice-President of the United States. 

Article XHI^ 

Section 1. Neither slavery nor involuntary servitude, except as a punish- 
ment for crime whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate 
legislation. 

Article XIV.=^ 

Section 1. All persons born or naturalized in the United States, and sub- 
ject to the jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States ; nor shall any 
State deprive any person of life, liberty, or property, without due process of law; 
nor deny to any person within its jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of persons in 

^ The thirteenth amendment was declared, in a proclamation of the Secretary of State, 
dated the 18th of December, 1865, to have been ratified by the legislatures of twenty-seven 
of the thirty-six States. 

2 The fourteenth amendment was, in a proclamation of the Secretary of State, dated 
the 28th of July, 1868, declared to have been ratified by the legislatures of thirty of the 
thirty-six States. 



APPENDIX 575 

each State, excluding Indians not taxed. But when the right to vote at any 
election for the choice of electors for President and Vice-President of the United 
States, Representatives in Congress, the Executive and Judicial officers of a 
State, or the members of the Legislature thereof, is denied to any of the male 
inhabitants of such State, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in rebellion, or 
other crime, the basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole number of male 
citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or military, under 
the United States, or under any State, who, having previously taken an oath, 
as a member of Congress, or as an officer of the United States, or as a member of 
any State legislature, or as an executive or judicial officer of any State, to sup- 
port the Constitution of the United States, shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort to the enemies thereof. But 
Congress may by a vote of two-thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties for services 
in suppressing insurrection or rebellion, shall not be questioned. But neither the 
United States nor any State shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United States, or any claim for the 
loss or emancipation of any slave ; but all such debts, obligations and claims shall 
be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate legis- 
lation, the provisions of this article. 

Article XV.^ 

Section 1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of race, 
color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by ap- 
propriate legislation. 

Article XVL^ 

The Congress shall have power to lay and collect taxes on incomes, from 
whatever source derived, without apportionment among the several States, and 
without regard to any census or enumeration. 

1 The fifteenth amendment was declared, in a proclamation of the Secretary of State, dated 
March 30, 1870, to have been ratified by the legislatures of twenty-nine of the thirty-seven 
States. 

2 The sixteenth amendment was declared, in a proclamation by the Secretary of State, 
dated February 25, 1913, to have been ratified by the legislatures of thirty-eight of the forty- 
eight States. 



576 the united states: a study in international organization 

Article XVII.^ 

(^^ The Senate of the United States shall be composed of two Senators from 
each State, elected by the people thereof, for six years ; and each Senator shall 
have one vote. The electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State legislatures. 

(2) When vacancies happen in the representation of any State in the Senate, 
the executive authority of such State shall issue writs of election to fill such 
vacancies ; Provided, That the legislature of any State may empower the execu- 
tive thereof to make temporary appointments until the people fill the vacancies by 
election as the legislature may direct. 

^^^ This amendment shall not be so construed as to affect the election or term 
of any Senator chosen before it becomes valid as part of the Constitution. 

Article XVIIL'' 

Section 1. After one year from the ratification of this article the manu- 
facture, sale, or transportation of intoxicating liquors within, the importation 
thereof into, or the exportation thereof from the United States and all territory 
subject to the jurisdiction thereof for beverage purposes is hereby prohibited. 

Sec. * 2. The Congress and the several States shall have concurrent power 
to enforce this article by appropriate legislation. 

Sec. 3. This article shall be inoperative unless it shall have been ratified 
as an amendment to the Constitution by the legislatures of the several States, 
as provided in the Constitution, within seven yefars from the date of the sub- 
mission hereof to the States by the Congress. 

1 The seventeenth amendment was declared, in a proclamation by the Secretary of State, 
dated May 31, 1913, to have been ratified by the legislatures of thirty-six o-f the forty-eight 
States. 

2 The eighteenth amendment was declared, in a proclamation by the Acting Secretary 
of State, dated January 29, 1919, to have been ratified by the legislatures of thirty-six of the 
forty-eight States. 



4 



INDEX 



INDEX 



Active, The, case of, 219-22, 341. 

Adams, John, Massachusetts delegate to first 
Continental Congress, 23 ; views of, re- 
specting Navigation Acts and Acts of 
Trade, 26; seconded Lee's motion for a 
declaration of independence, 29; seconded 
motion for appointment of Washington as 
commander-in-chief, 29; member, drafting 
committee. Declaration of Independence, 
29, 30, 30 note; on southern States, 41; 
on Massachusetts act of November 10, 
1775, establishing a prize jurisdiction, 
216. 

Adams, Samuel, leader, Massachusetts House 
of Representatives, 23; delegate to first 
Continental Congress, 23 ; in favor of 
amendments to Constitution, 310. 

Admiralty Courts, in colonies, 2\Z, 218; pro- 
visions for, under Confederation, 214 et 
seq.; of Pennsylvania, verdict, case of The 
Active, 220, 221 ; appeal to Congress from, 
221 ; appeal from, to Court of Appeals 
in Cases of Capture, 224. 

Admiralty jurisdiction, judicial power of 
United States extends to cases of, 212, 
447, 499; law obtaining in courts of, 447, 
460; District Court of United States a 
court of, 447-8. 

Admission of new States, provision for, Ran- 
dolph plan, 159; provision for, Patterson 
plan, 178 : the Northwest Ordinance, 286-8 ; 
compact between people of States and of 
Northwest Territory, 288-91 ; attitude of 
large States toward, 291 ; debate concern- 
ing, in Federal Convention, 293-4 ; equality 
of new States, 294; rights of existing 
States safeguarded, 294 ; right of Con- 
gress to govern territories until their ad- 
mission to union, 295. 

Adventurers and Planters of the City of 
London for the First Colony in Virginia. 
See London Company. 

Albany Congress, 1754, proposed by Great 
Britain, 11 ; colonies represented at, 11 ; 
sentiment for union in, 11 ; adoption of 
Franklin's plan by, 11. See also Frank- 
lin's Plan, 1754. 

Albany Plan. See Franklin's Plan. 1754. 

Ambassadors, how nominated and appointed, 
199, 273-4; received by president, 199; 
power of judiciary to pass upon cases af- 



fecting, 212, 256, 262, 263, 398, 399, 403. 
416-17. 

Amendments, to State constitutions, 139; to 
Articles of Confederation, 53-4, 57, 145-7. 

Amendments to Constitution, first ten, a bill 
of rights, 46, 137, 324 et seq.; provi- 
sions for, 159, 299-300; unanimous con- 
sent of States not necessary, 299; right 
of small States to equality not subject 
to, 300; methods of, 300 et seq.; power 
to make, 304-5 ; Constitution ratified by 
certain States under condition of, 309 et 
seq.; moved in first session of Congress 
under Constitution, 323 et seq.; respect- 
ing a bill of rights, 324; respecting rela- 
tion of States to union, 325 ; before the 
Senate, 326; added to text of Constitu- 
tion, 326; value of, 330; eleventh amend- 
ment, respecting immunity of States from 
suit, 465 ; ratification of, by States, 572-6 
notes; text of, 572-6 

Ames V. Kansas, case of, 416-18 

American Revolution, object of, 10; Monroe 
on causes of success of, 33; English atti- 
tude respecting relations with colonies, 
cause of, 66; colonies independent of each 
other before, 125 : results of, confirmed by 
adoption of Constitution, 126; steps taken 
to prevent anarchy during, 129-30. 

Anarchy during Revolution, steps taken to 
prevent, 129-30. 

Annapolis Convention, 1786, convocation of, 
56, 145; delegates to, 56; unauthorized by 
Congress, 56, 57 ; only five States rep- 
resented at, 56, 146 ; another conven- 
tion proposed by, 57-8, 151, 166; recom- 
mended framing of a Constitution, 130, 
146, ISO; demands of commerce and navi- 
gation considered by, 145-6, 166. 

Anne, Queen, affirmed report of Commis- 
sion, case of Penn v. Baltimore, 124. 

Appeal, Courts of, in Delaware, 126, 139; 
of colonies in general, 133, 138; in New 
York, 139; in Virginia, 405. See also 
Court of Appeals in Cases of Capture. 

Appeal, Lords of, opinion of, respecting a 
local law contrary to English common 
law, 97, 121. 

Appeals, Congressional Committee on. See 
Committee on Appeals. 

Appeals from the Plantations. See Cotn- 



579 



580 



mittee for Hearing Appeals from the Plan- 
tations. 

Arbitration, considered in relation to estab- 
lishment of Supreme Court, 270; submis- 
sion of political questions to, 270-1, 271 
note. 

Aristotle on justice, 211, 213. 

Arkansas, constitution of, 457-8. 

Army, power of Congress to raise and main- 
tain, 43, 167 ; president commander-in-chief 
of, 167, 197; not to be kept by States in 
time of peace, 210, 212. 

Arnold, Welcome, member of court, case 
of Pennsylvania v. Connecticut, 232, 233. 

Articles of Confederation, Dickinson's draft 
of, 18, 40, 41-2, 2i7; union created by, 34, 
58-60; independence regulated by, 40; rati- 
fication of, 40, 50, 53, 58, 59, 210, 214, 292, 
292 note, 305 ; existing forms of, 41 ; sum- 
mary of, 42-5; treaty-making provisions 
under, 43, 44, 49, 198 note, 248; legisla- 
tive powers conferred by, 43 et seq., 137, 
160, 173, 341 ; executive powers conferred 
by, 43 et seq., 160, 341 ; judicial powers 
conferred by, 44, 45, 109, 119 note, 126, 
160, 210 et seq., 229 et seq., 247-9, 268-9, 
341-2, 455-7: defects of, 45-6, 145. 157, 160, 
165-6, 194, 200, 247-9, 305 ; excellences of, 
46-7; revision of, original purpose of 
Federal Convention, 47, S3, 57-8, 130, 160, 
247, 299; international significance of, 47; 
Madison's summary of the weakness of, 
47-53; dissatisfaction concerning, 53; four 
proposals to amend, 53-4 ; replaced by Con- 
stitution, 53, 58, 130, 147, 161 ; amendments 
to, 57, 145-7, 299; a reversion to written 
charters, 84; certain provisions of, incor- 
porated into Constitution, 131 ; equality of 
votes of States under, 151, 152; correc- 
tion and enlargement of, proposed by Ran- 
dolph, 158-9; certain rights of States re- 
nounced by, 160, 210; Patterson plan a 
revision of, 164, 177-8 ; part of the " law 
of the land " of each State, 277 ; text of, 
494-502. See also Confederation. 

Assemblies. See Repres.entative Assemblies. 

Atherton purchase, 103-4, 109. 

Bacon, Sir Francis, second Virginia charter, 
drafted by, 71 ; third Virginia charter, 
drafted by, 72. 

Baiz, In re, 440 note. 

Baldwin, Abraham, vote and views of, re- 
specting representation in the Senate, 176, 
176 note; member, compromise committee, 
Senate suffrage controversy, 185. 

Baldwin, Mr. Justice (Henry), on distinction 
between political and judicial questions, 
386-7, 420-4; on determination of juris- 



diction, 401-2; on extent of judicial power 
of the United States, 405. 

Baltimore, Lord, agreement of, with sons 
of Penn, 1732, 101, 124; grant of Mary- 
land to, 121. See also Penn v. Baltimore. 

Bancroft, George, on representative assem- 
blies, 84 note; on boundary dispute in- 
volving existence of Vermont, 238, 239. 

Bank of United States v. Planters' Bank 
of Georgia, 464-5. 

Bankrupt Act, 1867, 416. 

Beard, Charles A., on sentiment in Federal 
Convention respecting judicial control, 
362-3. 

Beasley, Mr. Chief Justice, jurisdiction de- 
fined by, 400. 

Bedford, Gunning, views of, respecting equal- 
ity of States in legislature, 183-4; mem- 
ber of compromise committee. Senate suf- 
frage controversy, 185. 

Beers v. State of Arkansas, 457-8. 

Bennington, battle of, 239. 

Benson, Egbert, delegate of New York to 
Annapolis Convention, 56 ; member court. 
South Carolina-Georgia boundary dispute, 
237. 

Berkley of Stratton, Lord, grant of New 
Jersey to, 116. 

Bermuda Island, grant of, to London Com- 
pany, 72. 

Betsey, The, case of, 447. 

Beverly, Robert, on representative assem- 
blies in Virginia, 76, 84 note. 

Bill of Rights, first ten amendments to Con- 
stitution a, 46, 137, 324 et seq.; prefixed 
to State constitutions, 137; of 1689 (Eng- 
lish), 138; of Massachusetts, 133-5, 140; 
of Virginia, 135, 308, 313, 328. 

Bills of credit, power to emit, given to Con- 
gress, 43. 

Blackstone, Sir William, on rights of con- 
quest, 91 ; on dependent dominions, 93 ; 
works of, consulted by framers of Con- 
stitution, 439; on international and com- 
mon law, 439, 440. 

Blair, Justice, Circuit Court for District of 
Pennsylvania, 350; opinion of, respecting 
the unconstitutionality of an act of Con- 
gress, 316. 

Blankard v. Galdy, 92-3, 95. 

Board of Trade, opinion respecting New 
Jersey Boundary Act of 1748, 111-15, 117; 
opinion respecting New York-Connecticut 
boundary agreement, 114; colonial bound- 
ary disputes referred to, 118 note, 119 
note; reference to, of laws in excess of 
charter grants, 120; case of Lechmere v. 
Winthrop not referred to, 120. 

Boundary disputes, based upon an agreement, 



581 



101, 114, 121-5, 386-7. 420-1; between a 
citizen and a State, 101 ; in absence of an 
enforcible agreement, 109-18; how deter- 
mined, 118 note, 119 note, 125, 230, 422; 
provision of Articles of Confederation re- 
specting, 229; settled by temporary judicial 
commissions, 229 et seq.; made justiciable 
by Constitution, 271, 419, 422-3; judicial 
in nature, 386-7 ; English precedents and 
cases, 421-2; Penn v. Lord Baltimore, 101, 
121-5, 386, 387, 420, 421 ; Holden and Green 
petition, 101-9; between Massachusetts and 
New Hampshire, 118 note, 421; Massachu- 
setts and New York, 234-6, 237; Massa- 
chusetts and Vermont, 238-41 ; New Hamp- 
shire and Vermont, 238-41 ; New York and 
Connecticut, 114, 386; New York and 
Massachusetts, 118 note; New York and 
New Jersey, 109-18; New York and Ver- 
mont, 238-41 ; North Carolina and South 
Carolina, 118 note; North Carolina and 
Virginia, 118 note, 119 note; Pennsylvania 
and Connecticut, 231-4, 237; Pennsylvania 
and Virginia, 239, 241-2, 243; Rhode Is- 
land and Connecticut, 118; Rhode Island 
and Massachusetts, 118, 119 note, 125, 
270, 379, 386-7,' 401-2, 405, 420-4; South 
Carolina and Georgia, 234, 236-7 ; Vir- 
ginia and West Virginia, 96, 125-6. 

Bourgeois, Leon, views of, respecting sub- 
mission of political questions to arbitra- 
tion, 270-1, 271 note. 

Bowdoin, James, Massachusetts delegate to 
First Continental Congress, 23. 

Boyd V. United States, 444. 

Bradford, William, agent, case of Penn- 
sylvania V. Connecticut, 232. 

Bradley, Mr. Justice, on concurrent powers 
of Federal and State courts, 415-16; on 
questions made justiciable by Constitu- 
tion, 419; on terms of common law, 444. 

Bradstreete, Simon, deputy governor of 
Massachusetts, 103. 

Bragg V. The Sloop Dove, 222-3. 

Brearly, David, views of, respecting equal 
suffrage of States, 174; urged attendance 
of New Hampshire at Federal Conven- 
tion, 175, 176 ; member court, Pennsyl- 
vania V. Connecticut, 232, 233 ; declared 
New Jersey legislative act inconsistent with 
common law, 349, 363. 

Brewer, Mr. Justice, on division of sov- 
ereign powers, 335 ; on moot cases, 434. 

Briggs V. The Light Boats, 454, 461. 

Bright, General, and Olmstead's Case, 222 
note. 

Briscoe v. Bank of Kentucky, 457. 

British South African Company, 65. 

Brown v. United States, 383. 



Buckle, H. T., on Declaration of Inde- 
pendence, 31. 

Bunker Hill, battle of, 23, 28, 129. 

Burgesses, House of, in Virginia, 23, 74, 83, 
83 note; in Maryland, 83 note; colonial 
assemblies sometimes called, 132. 

Burke, Edmund, on general study of law 
in colonies, 439. 

Butler, Pierce, motion respecting procedure 
in Federal Convention, 155 ; on three-fold 
division of powers, 165 ; views of, re- 
specting inclusion of slaves in rule of 
representation, 187; on distinct commer- 
cial interests of States, 189. 

Buvot V. Barbut, 448. 

By-laws, of corporations, 67-8; in excess of 
grant of power, 347, 349. 

Cairns, Lord, on foreign States suing in 
English courts, 463. 

Calder v. Bull, 439. 

Callanan v. Judd, 433-4. 

Calvin's Case, 95, 96. 

Campbell v. Hall, 94, 99, 347-8. 

Canada, a self-governing dominion, 11; con- 
quest of, by Great Britain, 13, 24. 

Captures, provision for, in Randolph plan, 
159. See also Court of Appeals in Cases 
of Capture. 

Carteret, Sir George, grant of New Jer- 
sey to, 116. 

Cawston and Keane, on early chartered com- 
panies, 65 et seq. 

Chalmers, George, on union of colonies, 9 
note; on Constitution of Virginia, 77. 

Chancery, Court of, ordered enforcement of 
agrsement in case of Penn v. Lord Balti- 
more, 101, 420; under State constitutions, 
139. 

Charles I, voluntary submission of Narra- 
gansett Indians to government of, 103; 
charter of 1632 to Lord Baltimore, 123. 

Charles II, proclamation of, inviting settlers 
to Jamaica, 95 ; charter of 1664 to Duke 
of York, 116, 122, 123. 

Charleston, seat of representative govern- 
ment in South Carolina, 85 note. 

Chartered Companies. See Trading Com- 
panies. 

Charters, Massachusetts and Connecticut set- 
tlers originally without, 5 ; foundation of 
American Constitution, 64 ; colonial char- 
ters and charters of English trading com- 
panies, 64 et seq.; two kinds of, 66; legis- 
lation in excess of grants of, 65, 83, 84, 
97, 99, 119-21; erected bodies of indi- 
viduals into a corporation, 65, 68; of 1600, 
to East India Company, 64, 69-70, 71, 73, 
76; of 1606, to London and Plymouth 



582 IN 

Companies, 70-1, 11; of 1609 to London 
Company, 71-2, 11; separation of London 
and Plymouth Companies under, 11; of 
1612, to London Company, 12-2,, 79; of 
1620, to Plymouth Company, 77-9; of 
1628-9, 79-82; new instruments of govern- 
ment a reversion to, 84; Constitution a 
charter, 84; declared colonists British sub- 
jects, 90; influence of, on State constitu- 
tions, 130-2; governments more perfect 
under constitutions than under, 139; of 
Connecticut, 84 note, 103, 119, 121, 131, 
348; of Maryland, 121, 121 note, 122, 123; 
of Massachusetts, 65, 79-84, 84 note, 131, 
132; of New York, 86 note; of North 
Carolina, 86 note; of Pennsylvania, 86 
note, 122, 123; of Rhode Island, 85 
note, 103, 105, 131 ; of Virginia, 70 et sea., 
83. 

Chase, Chief Justice, on division of sov- 
ereign powers, 334-5, 370 ; on duty of presi- 
dent regarding acts of Congress, 383-6. 

Chelmsford, Lord Chancellor, on foreign 
States suing in English courts, 463. 

Cherokee Nation v. Georgia, 387-9, 401. 

Chesapeake Bay, interest of various States 
in navigation of, 55-6, 145. 

Chicago and Grand Trunk Railway Com- 
pany V. Wellman, 434. 

Chisholm v. Georgia, ZZi, 429, 430, 431, 442, 
465. 

Circuit Courts of the United States, organ- 
ized in pursuance of the judiciary act of 
Sept. 25, 1789, 350; powers of, strictly 
judicial, 350 et seq. 

Circuit Court for District of New York, 
opinion of, respecting extent of judicial 
powers, 350. 

Circuit Court for District of North Caro- 
lina, opinion of, respecting extent of ju- 
dicial powers, 351-2. 

Circuit Court for District of Pennsylvania, 
case of The Active before, 222, 222 note; 
opinion of, respecting extent of judicial 
powers, 350-1 ; opinion of, respecting un- 
constitutionality of an act of Congress, 
365 ; declared an act of Pennsylvania con- 
trary to its constitution, 365-6. 

Citizen, suit of, against a State, 102, 465. 

Clafflin V. Houseman, 415-16. 

Claims, Court of, appeals from, to Supreme 
Court, 356, 360-1, 431-2; governed by com- 
mon law, 444; United States may be sued 
in, 465 ; jurisdiction of, 465. 

Clark V. Barnard, 458-9. 

Clark's Case, 344. 

Clinton, George, opposed to Constitution, 
314. 

Clinton, Governor, letter of Board of 



\ 



Trade to, respecting Massachusetts-Rhode 
Island boundary, 119 note. 
Coercion of States, Hamilton on, 55; Madi- 
son on, 165; and laws operating directly 
on individuals, 202, 279 et seq.; provision 
for, Randolph plan, 158, 203; provision 
for, Patterson plan, 178, 203; considera- 
tion of, in Federal Convention, 203 et seq.; 
coercion of law v. coercion of force, 279 
et seq.; Chief Justice Taney on distinc- 
tion between judgment against an individ- 
ual and against a State, 453. 
Cohens v. Virginia, 409-12, 416, 428. 
Coke, Sir Edward, first Virginia charter 
drafted by, 70; on judicial power of King, 
345-6. 
Colden, Cadwallader, member Massachusetts- 
New Hampshire boundary commission, 119 
note. 
Colepepper, Lord, and two Houses of As- 
sembly in Virginia, 76, 84 note. 
Collector v. Day, 335, 368, 369. 
Colonial Laws, right to make, claimed by 
colonists, 97; in excess of charter, 97 et 
seq., \\9 et seq. 
Colonies, early plans for union of, 6 et 
seq.; English common law in, 15, 25, 90, 
91, 92, 97-8; colonial views of relations of, 
with Great Britain, 15, 22; efforts of, for 
reconciliation with Great Britain, 16, 18, 
2?>, 27, 28, 29; independence declared by, 
22 et seq.; claimed right of local self- 
government, 22 ; charters of, 22, 64 et 
seq.; a report on the rights and griev- 
ances of, 24-6; trade and intercourse with 
Great Britain prohibited by, 26, 28; Tax- 
ation of Colonies Act, 28 ; a body politic, 
34; union of, under Articles of Confed- 
eration, 40 et seq ; divided into two sec- 
tions by charter of 1606, 70-1 ; distinction 
between northern and southern, 71, 77, 83; 
courts and assemblies in, 72 et seq.; dis- 
tinguished for system of government, 76-7; 
representative assemblies in, 82-3; conflict 
of interests of, with those of Great Brit- 
ain, 99; boundary disputes between, 100, 
101, 109, 118 et seq.; dependent on Crown, 
101 ; independent of one another before 
Revolution, 125 ; three branches of gov- 
ernment in, 132, 137-9; independence of, 
recognized by Great Britain, 148. 
Commerce, state of, under Confederation, 49, 
54-5, 145, 166; demands of, considered by 
Annapolis Convention, 145-6, 166; with for- 
eign nations, to be regulated by Congress, 
166, 177, 190; southern States and regu- 
lation of, 188-9; two-thirds vote of legis- 
lature to regulate, 188; distinct commer- 
cial interests of States, 188. 



583 



Commissioners of New England Confedera- 
tion, appointment of, 7; powers and 
duties of, 7, 8; election of president of, 
8; authorized to sign agreement on May 
19/29, 1643, 9; appeal of Rhode Island 
from decision of, 102. 

Committee on Appeals, Congressional, es- 
tablished by Congress under Confedera- 
tion, 218; defects of, pointed out by mer- 
chants and citizens of Philadelphia, 219; 
appeal to, case of The Activ-e, 220, 221; 
superseded by Supreme Court, 222 ; cases 
before, transferred to Court of Appeals in 
Cases of Capture, 224; analysis of the 
work of, 224. 

Committee of Detail, projects for discussion 
in Federal Convention referred to, 160; 
Patterson, Randolph and Pinckney plans 
referred to, 164, 251 ; organization and 
constitution of, 260; report of, 260; mem- 
bers of, 260; draft of Constitution pre- 
sented by, 260 et seq.; Rutledge, chairman 
of, 261 ; provisions of draft respecting 
judiciary, 261-3; 268 et seq.; provision of, 
for government per interim, 321 ; provi- 
sion of, respecting jurisdiction of Supreme 
Court, 374; text of Randolph plan as pre- 
sented to, 529-32 ; text of report of, 532-40. 

Committee on Rules and Orders, establish- 
ment and functions of, 153; rules and 
orders, 154-5, 156. 

Committee of the States, report of, on com- 
promise in State equality dispute, 180. 

Committee on Style, modifications of, to 
article respecting judicial power of the 
United States, 264, 273 : and expression 
" supreme law of the land," 277, 303 ; mem- 
bers of, 277, 277 note; text of Constitu- 
tion sent to, 541-51 ; text of Constitution 
reported by, 552-69. 

Committee on Unfinished Portions, question 
of appointment of ambassadors and judges 
referred to, 274. 

Committee of the Whole, Pinckney plan re- 
ferred to, 163; Randolph plan referred to, 
163, 250, 252, 254, 255, 256, 257 ; report of, 
on Randolph plan, 176, 177, 524-5; Pat- 
terson plan referred to, 257 ; general prin- 
ciples of Constitution considered in, 259-60. 

Committee for Hearing Appeals from the 
Plantations, composition and functions of, 
100; appeal to, from colonial courts. 100; 
and petition of Holden and Green, 104 et 
seq.; and case of Lechmere v. Winthrop, 
120, 348 ; recommendation, case of Penn v. 
Baltimore, 124. 

Common Law, relation of to colonies, 15, 25, 
90, 91, 92, 97-8; terms of, in Constitution, 
439; a general study in colonies, 439; lim- 



ited to ciivl cases, 441-2: applicable in cases 
covered by special legislative act, 442; in- 
terpretation of terms of, 442 et seq.; re- 
lation of, to admiralty and maritime juris- 
diction, 447-9 ; relation of , to law of 
nations, 447-9. See also English Common 
Law. 

Common Pleas, Courts of, English, 345-6; 
in Philadelphia, 455-6. 

Commonwealth v. Caton, 363. 

Commonwealth v. Chapman, 445-6. 

Compact, the Mayflower Compact, 3; be- 
tween Virginia and Maryland, 49; be- 
tween Pennsylvania and New Jersey, 49; 
social and political, 134; a fundamental 
law, 135. 

Conciliatory Resolution, 1775 , communicated 
to colonies by Lord North, 27 ; rejected 
by Congress, 28. 

Concord, battle of, 26, 28, 129. 

Confederates, New England, expenses and 
spoils of war divided among, 7; admis- 
sion of new confederates or plantations, 
7; business referred to, by commission- 
ers, 8; provision respecting violation ^f 
Articles by the, 8. See also New England 
Confederation and Commissioners of New 
England Confederation. 

Confederation, powers vested in, exercised 
by Congress, 42 et seq.; powers renounced 
to, by States, 42-3 ; composed of sov- 
ereign, free and independent States, 45 ; 
state of commerce under, 49, 54-5, 145, 166. 
See also Articles of Confederation. 

Congress under Confederation, formation 
and interests of, 40; question of large 
and small States before, 41 ; efforts of, 
to increase land values, 42 ; powers vested 
in, 42 et seq ; appellate jurisdiction of, 
44; Annapolis Convention unauthorized by, 
56, 57 ; resolution of, convoking Federal 
Convention, 57-8; resolution of, respecting 
prize cases, 216 et seq.; resolutions of, re- 
specting relations of States, 221 ; estab- 
lished permanent Court of Appeal in Cases 
of Capture, 223 ct seq.; temporary judicial 
commissions appointed by, 229 et seq.: ac- 
tion of, respecting Northwest Territory, 
292-3, 292 note ; to continue between adop- 
tion of Constitution and organization of 
new government, 321 ; letter transmitting 
Constitution to, 570. 

Congress under Constitution, powers vested 
in, 43 ; first ten amendments to Constitu- 
tion proposed to by first, 46, 323 ; enumera- 
tion of general powers of, 165 et seq.; 
commerce with foreign nations to be regu- 
lated by, 166, 177, 190; acts of, supreme 
law of land, 178, 276-9, 303, 375; power of, 



584 IN 

over territories until their admission to 
union, 295; power of, to recognize State 
governments, 303 note, 380-2, 392; to pro- 
pose amendments to Constitution, 300-1; 
defined extent of power of Supreme Court, 
342; act of, respecting pensions, 350, 365; 
act of, authorizing judges to adjust claims 
under treaty with Spain, 354; act of, re- 
specting jurisdiction of Supreme Court, 
366-8; act of, respecting drawing of lot- 
teries in District of Columbia, 409. See 
also Legislative Branch. 

Congressional Committee on Appeals. See 
Committee on Appeals, Congressional. 

Connecticut, settlers of, 4, 5 ; Fundamental 
Orders of, 4, 5 ; member of New Eng- 
land Confederation, 7; represented at Al- 
bany Congress, 11 , governed under a char- 
ter, 22; charter of, 84 note, 103, 119, 121, 
131, 348; representative assemblies of, 84 
note, 96; charter provisions of, in force 
after Declaration of Independence, 84; leg- 
islative power of, 96, 97, 101, 119; boundary 
disputes, 101-9, 114, 118, 231-4, 237, 292 
note; Act of 1699 respecting settlement of 
intestate estates, 119 et seq., 348; constitu- 
tion of, 131 ; colonial governor of, elected 
by people, 138; courts of, elected by col- 
onial authorities, 138; delegates of, to 
Federal Convention, 147, 152; in favor of 
equal representation and suffrage of States 
in Senate. 179-80, 184; claim of, to North- 
west Territory, 292 note ; opposed to popu- 
lar ratification of Constitution, 305, 308. 

Conquest, rights of, v. rights of discovery, 
91, 92; Blackstone's interpretation of, 92; 
laws of, 93 note, 95. 

Constitution of the United States, pre- 
scribes equal representation of States, 11 ; 
a compromise, 41, 46, 172, 332; govern- 
ment under, acts directly on people of 
States, 43 ; powers vested in union by, 
43, 161, 165-8; three-fold division of gov- 
ernment a principle of, 45; amendments 
to, 46, 137, 299 et seq., Z2i et seq., i72-6\ 
ratification of, 46, 164, 301 et seq., 312, 
321-2; Articles of Confederation and State 
constitutions bases of, S3, 131 ; Articles 
of Confederation replaced by, 53, 58, 147, 
161; adoption of, 58; a result of progres- 
sive history, 64; colonial charters founda- 
tion of, 64; laws inconsistent with, 65, 101, 
200, 361 ; judicial power conferred by, 
65, 102, 108, 119 note, 121, 125, 126, 
190, 211 12, 374-5, 398 et seq., 427, 429, 
430, 438 et seq.. 453, 454; a charter of 
union, 84; legislative powers conferred by, 
137, 172 et seq.. 280, 342, 376, 467 ; instruc- 
tions respecting, to delegates to Federal 



Convention, 150-3 ; Randolph plan basis of, 
158; other plans for, 163-4; drafted by 
Committee of Detail, 164, 260, 532-40 ; The 
Federalist, classic exponent of, 164, 315 ; 
international law in, 167 ; established a 
government of laws and not of men, 168; 
seat of government under, 168 ; established 
a government of limited powers, 168; su- 
premacy of, enforced, case of The Ac- 
tive, 222 note ; " supreme law of the land," 
276-9, 302 et seq., 375; devised primarily 
for the thirteen confederated States, 290; 
ofhcers of States and United States bound 
by oath to support, 304; derives its validity 
from ratification of the States, 309; gov- 
ernment under, begun, 322 ; ratified by 
State conventions, 331 ; Madison's letter to 
Hayne respecting, 335-7; text of, 502-11, 
552-69; transmitted to Congress, 570; 
transmitted to States for ratification, 571. 
Constitutions, British constitution, 64; gov- 
ernment more perfect under, than under 
charters, 139. 
Constitutions, State, three-fold division of 
government in, 45, 133 et seq.; influence 
of colonial charters on, 130-2; bills of 
rights prefixed to, 137; governments under, 
139-40; courts under, 139; the Constitu- 
tion of the United States given precedence 
over, 276, 302 et seq., 375 ; of Arkansas, 
457-8; of Connecticut, 131; of Delaware, 
126; of Maryland, 196, 307; of Massa- 
chusetts, 131 et seq.. 138, 156, 201, 274 et 
seq.; of New Jersey, 349; of New York, 
136, 137, 201; of Pennsylvania, 136, 365; 
of Rhode Island, 131, 380; of South Caro- 
lina, 198; of Vermont, 290; of Virginia, 
76-7, 133. 
Constitutional Convention. See Federal Con- 
vention. 
Continental Congress, First, 1774, a fore- 
runner of, in Penn's plan of union, 10; 
foresaw necessity for some form of gov- 
ernment, 129-30; Franklin's second plan 
presented to, 15; met at Philadelphia, 23; 
delegates to, 23, 24 ; Randolph president 
of, 24; Declaration and Resolves of, 24-6; 
views of members respecting Navigation 
Acts and Acts of Trade, 26; advocated 
association to cut off trade with Great 
Britain, 26. 
Continental Congress, Second, independence 
declared by, 22, 29 et seq.; recommends 
adoption of some form of government, 
28-9, 129 et seq.; met at Philadelphia, 26, 
129; president of, 26; election of com- 
mander-in-chief by, 26-7 ; adopted Declara- 
tion of the Causes and Necessity of Tak- 
ing up Arms, 27; efforts of, at concilia- 



I 



585 



tion with Great Britain, 27 et seq.; doc- 
trines of, 35 ; action of, respecting matters 
of prize, 216- 17. 

Consuls, how nominated and appointed, 199, 
261-2; power of judiciary to pass upon 
cases affecting, 212, 262, 263, 277, 398, 
403, 417. 

Cope, Henry, member, Massachusetts-New 
Hampshire boundary commission, 119 note. 

Copyrights, power over, given to Congress, 
166. 

Corporations, charters to, 65, 68; character- 
istics of, 66-7; defined, 67; by-laws of, 
67, 68. 

Council for the Government of Foreign 
Plantations, 99. 

Counterfeiting, power of Congress to pun- 
ish. 166. 

Court of Appeals in Cases of Capture, first 
permanent tribunal of States, 210 et seq.; 
advocated by Washington, 216-18 ; estab- 
lished by Congress under Confederation, 
223; judges of, 223; cases before Con- 
gressional Committee on Appeals trans- 
ferred to, 224 ; analysis of the work of, 
224; cases submitted to, 224 note; Jameson 
on influence of, 225; an origin of Su- 
preme Court, 225, 244 ; purpose of, to ob- 
tain uniformity of decision in matters of 
prize, 244; jurisdiction of, 273, 447; ju- 
dicial power of United States extended to 
cases decided by, 447. 

Courts, under Confederation, 44-5, 214 et 
seq., 229 et seq., 247; power of English 
courts respecting legislation in excess of 
charters, 65 ; of East India Company, 69- 
70; colonial, 72 et seq, 100, 138. 213, 218; 
in States, 138. 139, 213; relation of Fed- 
eral and State courts, 304, 413-16; a court 
defined, 400; right of Congress to bring 
cases to cognizance of, 432. See also Su- 
preme Court, Judicial Power. 

Coyle V. Smith, 294. 

Credit. See Bills of Credit. 

Crown of England, Pilgrims without char- 
ter from 3, 5; disapproved Albany plan 
of union, 14; petitioned by colonists for 
redress of grievances, ?3, 27 : Jamaica, part 
of possessions and revenues of, 92, 93; 
legislative powers of, 94, 95 ; prerogatives 
of, 99; colonies dependent on, 101; in- 
terest of, in colonial disputes, 101 et seq.; 
certain colonial governors and courts ap- 
pointed by, 138; territory ceded to, by 
Treaty of Paris, 292. 

Cuba, title of, to Isle of Pines, 379 note. 

Cumberland, George Earl of. East India 
Company charter of 1600, granted to, 69. 

Curtis, Mr. Justice, on right of Congress to 



bring cases within cognizance of courts, 
431-2. 

Currency, to be issued by Congress, 43. 

Gushing, Thomas, delegate. First Continental 
Congress, 23. 

Gushing, Justice, member. New York Cir- 
cuit Court, 350; commissioner, case of 
United States v. Todd, 353. 

Davie, William R., member, compromise com- 
mittee. Senate suffrage controversy, 185. 

Davis and Cargo, The Schooner, 461. 

Davis, J. C. Bancroft, cited, regarding work 
of committees and Court of Appeals, 224, 
224 note. 

Day, Mr. Justice, on Root's instructions for 
government of the Philippines, 330; on 
extra-judicial opinions of Supreme Court 
judges, 433; on interpretation of terms of 
common law, 443. 

Dayton, Jonathan, presence at Federal Con- 
vention urged, 176; considered provision 
for settling disputes between States un- 
necessary, 269. 

Dean, Silas, negotiated treaty with France, 
1778, 35. 

Declaration and Resolves of First Conti- 
nental Congress, 1774, adopted. 24; sum- 
mary of, 24-6; extract from, on English 
law in colonies, 98. 

Declaration of the Causes and Necessity of 
Taking up Arms, 1775, adopted by Sec- 
ond Continental Congress, 27. 

Declaration of Independence, some form of 
general government necessitated by, 15; 
justified, 22; conditions which occasioned, 
22; Richard Lee's motion respecting, 29 et 
seq., 40, 135, 217; drafting committee of, 
29; draft of, presented by committee, 30; 
signed and published, 30; summary of. and 
comments on, 30 et seq. ; drafted by 
Thomas Jefferson, 30, 33, 135; ideas and 
language of, derived from English phil- 
osophers, 25-6; French influence on, 35-6; 
vested sovereignty in the people, 133, 308; 
government derives powers from consent 
of governed, 140; declares colonies free 
and independent States, 455; text of, 
492-4. 

Declaration of Rights. See Bill of Rights. 

De Lancey, James, member, Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Delaware, excluded from Albany plan of 
union, 11 ; interest of, in navigation of 
Chesapeake Bay, 56; represented at An- 
napolis Convention, 56, 146 ; appointed 
delegates to Federal Convention, 56, 146; 
representative assemblies in, 85 note; char- 



586 IN 

ter of, 86 note; disputes between Penn 
and Lord Baltimore respecting territory 
of, 121-5; constitution of, 126; court of 
appeals in, 126, 139; instructions of, to 
delegates to Federal Convention, 150-2, 153 ; 
insisted on equal vote of States in both 
branches of legislature, 151-2, 153, 173-4, 
184, 185 ; vote of, respecting popular rati- 
fication of Constitution, 305, 308; ratifi- 
cation of Constitution by, 309, 310, 571 
note; ratification of first ten amendments 
to Constitution by, 572 note. 

De Lovio v. Boit, 447 note. 

Dent, Mr. Justice, " supreme court " defined 
by, 400. 

Detail, Committee of. See Committee of 
Detail. 

Dickerson, Oliver Morton, on settlement of 
colonial boundary disputes, 118 note, 119 
note. 

Dickinson, John, draft of Articles of Con- 
federation presented by, 18, 40, 41-2, 237; 
drafted conciliatory petition to King, 27; 
chairman of committee to report form 
of confederation, 40; delegate of Delaware 
to, and chairman of Annapolis Conven- 
tion, 56; Delaware delegate, Federal 
Convention, 151, 2^1 ; compromise motion 
of, respecting election of senators by State 
legislatures. 173, 179, 180; in favor of 
equal suffrage of States, 177 ; president 
of Pennsylvania, 233; member of court. 
South Carolina-Georgia boundary dispute, 
lil ; refused to sign Declaration of In- 
dependence, lil ; opposed to limitation of 
judicial power of United States, 252; 
views of, respecting institution of national 
judiciary by legislature, 253; proposal, re- 
specting tenure of judges, 263; motion of, 
respecting appellate jurisdiction of Su- 
preme Court, 273. 

Dickinson, Philemon, member of court. 
South Carolina-Georgia boundary dispute, 
237. 

Disarmament, States voluntarily submitted 
to, 210. 

Discovery, right of, v. right of conquest, 91 ; 
true basis of possession, 92; laws of con- 
quest, 93 note. 

Disputes. See Boundary disputes. 

District of Columbia, seat of government 
under Constitution, 168; act of Congress, 
permitting the drawing of lotteries in, 409. 

Doderidge, Sir James, drafted first Virginia 
charter, 70. 

Drafting Committee of Declaration of Inde- 
pendence, 29, 30. 

Drayton's Articles of Confederation, treaty- 
making provision in, 198 note. 



1 



Duane, James, District Judge, New York 
Circuit Court, 350 ; member of court. South 
Caroline-Georgia boundary dispute, 237. 

Duties, right of States to lay, renounced, 43 ; 
power of Congress to collect, 166; pro- 
vision respecting, Patterson plan, 177. 

Dyer, Eliphalet, agent, case of Pennsylvania 
V. Connecticut, 232. 

East India Company, charters of, 64, 69-70, 
71, Ti, 76; a joint-stock company, 68; 
origin of Empire of India, 70 ; organization 
of, 70. 

East Jersey. Se^e New Jersey. 

Eastland Company, a regulated company, 68. 

Edward VI, statute of, against buying offices 
concerning the administration of justice, 92. 

Elizabeth, Queen, charter to George, Earl of 
Cumberland, 69, 70, 71; charter to East 
Indian Company, 17> 

Elliot, Andrew, member New York-New Jer- 
sey boundary commission, 1767, 116 

EUiot, Jonathan, on debates in the Federal 
Convention, 53. 

Ellsworth, Oliver, Connecticut delegate, Fed- 
eral Convention, 152 ; motion of, respecting 
term " national " in relation to the legis- 
lature, 161 ; in favor of equal suffrage of 
States, 176; on necessity of maintaining 
the State governments, 180, 184 ; urged 
equality of suffrage in Senate, 179-80, 181-2, 
184; member compromise committee. Sen- 
ate suffrage controversy, 185 ; views of, 
respecting principle of coercion, 206, 281-2; 
member. Committee of Detail, 260 ; in fa- 
vor of ratification of Constitution by State 
legislatures, 305, 307, 308; on determination 
of constitutionality by Supreme Court, 364; 
chairman, drafting committee of Judiciary 
Act, 1789, 403, 414; proposed investing ju- 
diciary with political functions, 418; opin- 
ion of, respecting inclusion of law of 
crimes in common law, 441. 

Embassies, to be sent and received by Con- 
gress, 43. See also Ambassadors. 

Endicott, John, director of "London's Plan- 
tation in Massachusetts Bay in New Eng- 
land," 81. 

England. See Great Britain and Crown of 
England. 

English Common Law, indelible allegiance a 
doctrine of, 90; relation of, to colonies, 
90 et seq.; application of, to Jamaica, 92-3; 
early colonists not familiar with, 98; doc- 
trine of primogeniture under, 119-20; Con- 
necticut Act of 1699 declared contrary to, 
121; influence of, on nature of judicial 
power in Constitution, 343. 
English subjects, colonists declared by char- 



587 



ters to be, 90; discovery by, 92; bound 
by acts of Parliament, 93. 
Erstern, The, 224 note. 
Executive, of States, 136, 138 ; differences of 
opinion respecting, in Federal Convention, 
195 ; a single executive, 195 ; term of office, 
195-6; system of election of, 196-7; his 
oath of office, 197; his powers, 197, 324; 
relations of, with legislative department, 
197, 200 et seq., power of, respecting 
treaties, 197-9; vested with exercise of 
political power, 376 et seq. See also Presi- 
dent, Vice-President. 
Executive Power, under Articles of Confed- 
eration, 43 et seq., 160, 341 ; of New Eng- 
land Company, 72; of Privy Council, 99} 
provisions respecting, in charters, 132-3; in 
State constitutions, 136, 138; in Constitu- 
tion, 138, 342; in Randolph plan, 158-9, 
161, 194-5, 199, 200, 250 ; Sir Henry Maine 

I on, 280; in Patterson plan, 178. 

• Experiment v. The Chester, 224 note. 

Federal Convention, Rhode Island not rep- 
resented in, 7, 147; question of large and 
small States in, 41, 148, 151-3, 172 et seq., 
250, 255 et seq., 300; revision of Articles 
of Confederation original purpose of, 47, 
53, 57, 58, 130, 247; leadership of Madison 
in, 48; replaced Articles of Confederation 
by Constitution, 53, 147; recommended by 
Annapolis Convention, 56-7, 146, 150, 
166; recommended by Congress, 57-8, 146- 
7; drafted Constitution, 84, 130; New York 
State constitution a source of proposals 
in, 136-7; differences of opinion in, re- 
specting question of executive power, 138, 
195; method of choosing judges consid- 
ered by, 138; met at Philadelphia, 147-8; 
organization of, 148-9 ; an international con- 
ference, 129, 466; instructions to delegates, 
150-3, 173; a conference of twelve States, 
153; committee on rules and orders, 153-5; 
international aspects of, 155-6; opening of 
the Convention, 156; Randolph's fifteen res- 
olutions, 158-60; change of purpose of, 
160; other "plans," 163-4; question of 
" national " v. " federal " government be- 
fore, 164-5 ; summary of powers granted 
to union by, 165-8; spirit of compromise 
in, 172; duties of committees of, 254; con- 
templated union of more than thirteen 
States, 290; insisted on separation of politi- 
cal and judicial powers, 418; text of let- 
ter of, transmitting Constitution to Con- 
gress, 570. See also Committees. 

Federal Court of Appeals. See Court of 
j Appeals m Cases of Capture. 

Federalist, The, classic exponent of the Con- 



stitution, 164, 274-5, 362; Hamilton, Madi- 
son and Jay, authors of, 164, 274; on in- 
dependence of Vermont, 241 ; on lack of 
judicial power under Confederation, 247- 
8; on sovereign immunity from suit, 248-9; 
on power of Supreme Court to declare 
laws unconstitutional, 362, 363-4; on con- 
current jurisdiction of State and Federal 
Courts, 414-15. 

Field, Air. Justice, on terms " cases " and 
" controversies," 429-30 ; on immunity from 
suit and extent to which it may be re- 
nounced, 459-60. 

Fleming, William, member court, Massachu- 
setts-New York boundary dispute, 235. 

Foreigners, cases affecting, in provisions of 
Randolph plan, 159. 

Foster v. Neilson, 376-8, 379, 379 note, 382. 

Frame of Government, 1682 (Pennsylvania), 
representative assembly under, 85 note. 

Framework Knitters v. Green, Master and 
Company of, 67. 

France, alliance of American colonies with 
Indians in case of war with, 11; treaty 
of, with Great Britain at close of Seven 
Years' War, 14, 24, 94, 292, 347; alliances 
of, with United States, 34-5, 45; pre- 
tensions of, to lands around Green Moun- 
tains, 238 ; in command of Lake Cham- 
plain, 238; desired union of American 
States, 293 ; territory in Louisiana ceded 
to, by Spain, 376-7; ceded territory 
to United States by treaty of 1803, 
377. 

Franklin, Benjamin, Pennsylvania delegate, 
Albany Congress, 11 ; indignities suffered 
by, at hands of British, 18; views of, re- 
specting conciliation with Great Britain, 
18; member, drafting committee. Declara- 
tion of Independence, 30, 30 note, 35 : first 
minister to France, 35 ; negotiated treaty 
with France, 1778, 35 ; in favor of single 
legislative house, 136, 172; president of 
Pennsylvania, 148; considered in connec- 
tion with presidency of Federal Conven- 
tion, 149; personality in Federal Conven- 
tion, 149; remarks on dispute respecting 
equal suffrage in Senate, 182; member 
compromise committee. Senate suffrage 
controversy, 185; on conflicting interests in 
Federal Convention, 333-4, 467 ; on use of 
Vattel's work in Continental Congress, 
439-40. 

Franklin Plan, 1754, why rejected, 6, 14; 
presented to, and adopted by Albany Con- 
gress, 11 ; summary of, 11-14. 

Franklin's Plan, 1775, laid before Contin- 
ental Congress, 15-16; summary of, 16- 
17; not adopted, 17; Dickinson's draft of 



588 



Articles of Confederation similar to, 18, 
41-2. 

Franklin, William Temple, proposed as sec- 
retary, Federal Convention, 149; not 
elected, 149-50. 

French and Indian War, Washington in, 14; 
expenses of New York in, 115; States 
parties in, 213. 

French Revolution, and influence of Rous- 
seau, 31. 

Frothingham, Richard, on Franklin's first 
plan of union, 6; on principle underlying 
New England Confederation, 9 note; on 
representative assemblies, 83-6 notes. 

Fuller, Mr. Chief Justice, on case involving 
action of political departments of govern- 
ment, 379 note; opinion of, in case in- 
volving distinction betwreen suits of a civil 
nature and suits coming under law of 
nations, 440 note. 

Fundamental Orders of Connecticut, first 
written constitution, 4; preamble to, 5; 
provisions of, 5. 

Garcia v. Lee, 379, 379 note. 

General Assemblies, of East India Company, 
70; of Virginia, 74, 75, 76; of Massachu- 
setts, 80, 82-3; of Grenada, 94, 96, 247; 
of Jamaica, 95; of Connecticut, 96; of 
New York, 137. 

George III, grievances suffered by colonies 
at hands of, 30; proclamation of, respect- 
ing General Assembly of Grenada, 94, 96, 
247. 

Georgia, excluded from Albany plan of union, 
11; not represented at First Continental 
Congress, 23, 24; represented at Second 
Continental Congress, 26; wars and treat- 
ies of, with Indians, 49; appointed dele- 
gates to Federal Convention, 57, 146; rep- 
resentative assemblies in, 86 note ; instruc- 
tions to delegates. Federal Convention, 152; 
vote divided on question of equal suf- 
frage of States in Senate, 176, 176 note, 
184 ; opposed to equality of States in Sen- 
ate, 185; in favor of popular ratification 
of Constitution, 305, 308; ratification of 
Constitution by, 310, 571 note. 

Georgia v. Stanton, 386-9. 

Germans, customs of, depicted by Tacitus, 76. 

German States, customs union in, 55. 

Gerry, Elbridge, on representation of States 
in two branches of legislature, ISO; fa- 
vored compromise. Senate suffrage contro- 
versy, 184-5 ; chairman compromise commit- 
tee. Senate suffrage controversy, 185; 
urged establishment of prize jurisdiction 
in Massachusetts, 216; proposed a bill of 
rights to Constitution, 328; in favor of 



separation of judicial and other powers, 
314, 418, 419. 

Gibbons v. Ogden, 59-60. 

Gladstone, Wm. E., statement of, regard- 
ing British and American constitutions, 
64. 

Gloucester, The, 224 note. 

Goldsborough, Robert, member of court, 
South Carolina-Georgia boundary dispute, 
237. 

Gordon v. United States, 356-60, 453. 

Gorham, Nathaniel, on commercial motive 
to union of Eastern States, 188, 189-90; 
called attention of Federal Convention to 
method of appointment of public officials 
in Massachusetts, 199 ; in favor of appoint- 
ment of Supreme Court judges by execu- 
tive with consent of the Senate, 258 ; mem- 
ber, Committee of Detail, 260; considered 
special provision for settling suits between 
States unnecessary, 269; in favor of sep- 
aration of judicial and other powers, 418, 
419. 

Government, under Constitution, a govern- 
ment of laws, 168; seat of, 168; a govern- 
ment of limited powers, 168; per interim, 
321; new government begun, 322; relation 
of Court to, 369. 

Governor, signature of, to statutes and bills 
required by State constitutions, 136; mem- 
ber of council for revision of bills to be 
passed by legislature, 136-7; powers en- 
trusted to by States, 197. 

Governor and Company of the Massachu- 
setts Bay in New England, creation of 
by charter of 1628-9, 79, 80. 

Governor and Company of Merchants of 
London Trading to the East Indies. See 
East India Company. 

Gray, Mr. Justice, decision, case involving 
action of political departments of the gov- 
ernment, 379 note ; on interpretation of 
terms of Constitution in light of common 
law, 444; decision indicating gravity of 
offense against law of nations, 449; on 
reason for exemption of State from suit, 
454. 

Great Britain, conquest of Canada by, 14, 
23; efforts of colonies at reconcihation 
with, 16, 18, 23, 27, 28. 29; regarded col- 
onies from imperial standpoint, 22-3 ; proc- 
lamation of rebellion issued by, 28 ; renun- 
ciation by, of right to impose taxes on a 
colony, 28; Treaty of Peace with United 
States, 49, 60, 276, 277; Island of Granada 
ceded to, by treaty of 1763 with France, 
94; conflict of interests of, with those of 
colonies, 99 ; western territory ceded to, by 
France, 292. 



589 



" Green Mountain Boys," defeated Hessians 
at battle of Bennington, 239. 

Greene, Nathaniel, declined position as mem- 
ber of court, Pennsylvania v. Connecticut, 
232. 

Grenada, legislative authority vested in gen- 
eral assembly of, 94, 96; ceded to Great 
Britain by France, 94, 347. 

Grenville's Act, 1770, for trial of disputed 
elections, 230. 

Grier, Mr. Justice, on prize cases and power 
of president under international law, 
382-3. 

Griffin, Cyrus, Judge, Court of Appeals in 
Cases of Capture, 223 : member of court, 
Pennsylvania v. Connecticut, 232, 233. 

Guizot, F., on assemblies, 76. 

Habana, The Paquete, 449. 

Hague Conference, Pacific Settlement Con- 
vention of, 269, 468. 

Hamilton, Alexander, on coercion of States, 
55, 204, 205; delegate of New York to 
Annapolis Convention, 56; proposed Major 
Jackson for secretary of the Federal Con- 
vention, 149-50; suggestion for a constitu- 
tion by, 164, 527-8; secured ratification of 
Constitution in New York, 164, 314-15; 
and The Federalist, 164, 204, 205, 314-15, 
362; on independence of Vermont, 241; 
on defective judicial system under Con- 
federation, 247-8 ; on immunity of sovereign 
from suit, 248-9; member. Committee on 
Style, 277 note; views of, respecting a 
conditional ratification of the Constitu- 
tion, 309; views of, on interpretation of 
Constitution, 332; on power of judiciary 
to declare laws unconstitutional, 363-4; 
held judicial power to be concurrent, 
414-15. 

Hamilton, John, member Massachusetts-New 
Hampshire boundary commission, 119 note. 

Hancock, John, succeeded Randolph as presi- 
dent of Second Continental Congress, 26, 
216, 310; signed Declaration of Independ- 
ence as president of Congress, 30, 310; 
views of, respecting amendments to Con- 
stitution, 310. 

Hans V. Louisiana, 419. 

Hanson, Alexander Contee, member of court, 
South Carolina-Georgia dispute, 237. 

Hardwicke, Lord. See Yorke, Sir Philip. 

Harlan, Mr. Justice, on right of United 
States to withhold moneys received by it 
under a treaty, 432-3. 

Harris, William, pretensions of, subject of 
Holden & Green petition, 102-9. 

Harrison, Benjamin, on influence of New 
Englanders in Congress, 41. 



Hayburn's Case, 352, 353, 365. 

Haymilton, Otho, member, Massachusetts- 
New Hampshire boundary, 119 note. 

Heathfield v. Chilton, 448. 

Henry, Patrick, opposed to Constitution, 312; 
declined appointment to Federal Conven- 
tion, 312. 

Henry IV, project of, respecting establish- 
ment of European diet, 9, 333. 

Hessians, defeated at battle of Bennington, 
239. 

Hobart, Sir Henry, on by-laws of corpora- 
tions, 67; drafted second Virginia char- 
ter, 71 ; drafted third Virginia charter, 
72. 

Holden and Green, petition of, 101-9. 

Holland, Treaty of, with United States, Oc- 
tober 8, 1782, 49, 60. 

Holland, Samuel, member of New York- 
New Jersey boundary commission, 1767, 
116. 

Holmes, Mr. Justice, on source of immunity 
of sovereign power from suit, 454-5. 

Holmes v. Walton, 349, 363. 

Holt, Chief Justice, on jurisdiction of a cor- 
poration, 68; on rights of discovery and 
conquest, 92. 

Holton, S., agent, Massachusetts-New York 
boundary dispute, 235. 

Hooker (Richard), influence of doctrines 
of, on Declaration of Independence, 35. 

Hooker, Thomas, on spirit of Pilgrims, 3. 

Hosmer, Titus, Judge, Court of Appeals in 
Cases of Capture, 223. 

House of Burgesses, Virginia, 23, 83, 84 
note; colonial assemblies sometimes called, 
132. 

House of Representatives, represents people 
of States according to population, 172; 
great debate on, question of representa- 
tion in, 173 et seq.; compromise respect- 
ing proportional representation in, 156-7; 
rule of suffrage for, 187; and presidential 
election, 196 ; debate in, on Madison 
amendments, 325. See also Legislative De- 
partment. 

Houston, William Churchill, member of 
court, Pennsylvania v. Connecticut, 235, 
236. 

Hudson Bay Company, a joint-stock com- 
pany, 68. 

Hunter, governor of New York, 110; com- 
missions issued by, respecting New York- 
New Jersey boundary dispute, 110, 113. 

Hutchinson, Thomas, on Virginia House of 
Burgesses, 23 ; on original charter of Mass- 
achusetts, 65 ; on representative institutions 
in Massachusetts, 82-3 ; plan of, for treaty- 
making with Indians, 198 note. 



590 IN] 

Impeachments, of national officers, Randolph 
plan respecting, 159; cases of, withdrawn 
from power of president, 197; trials of, 
272-3. 

Imposts, power of States to lay, renounced, 
43; power of Congress to lay and col- 
lect, 166. 

Independence, a fundamental right, 22; ques- 
tion of, forced upon Second Continental 
Congress, 29 ; proclaimed, 30 ; regulated by 
Articles of Confederation, 40; of colonies 
recognized by treaties, 60, 148 ; colonies in- 
dependent of one another before Revolu- 
tion, 125 ; of States, 455. See also Dec- 
laration of Independence. 

India, Empire of, 70. 

Indians, Six Nations of. Congress to treat 
with, convoked by Great Britain, 11 ; pur- 
chase from, of land called Indiana, 242. 

Indians, not taxed, 42, 177-8 ; wars and treat- 
ies of Georgia with, 49; right of, to pos- 
session, 91; Jamaica conquered from, 92; 
purchase of Rhode Island from, 102-4, 107; 
voluntary submission of Narragansett In- 
dians to British Government, 101 ; power 
of Congress to regulate commerce with, 
166; territories reserved to, 292 note. 

Ingersoll, Jared, member. New York-New 
Jersey boundary commission, 116. 

Instructions to delegates. Federal Conven- 
tion, 150-3, 173. 

International Law, in Constitution, 167; 
rights of presidents under, 382; the com- 
mon law of nations, 439. 

International " case," defined, 431. 

Iredell, Mr. Justice, on sovereignty of the 
States, iZZ; judge. North Carolina Circuit 
Court, 351 ; on distinction between con- 
troversies of a civil and criminal nature, 
429, 431, 442. 

Jackson, Andrew, refused third term as pres- 
ident, 195-6. 

Jackson, Major James, secretary of Federal 
Convention, 150. 

Jamaica, part of possession and revenue of 
Great Britain, 92, 93 ; conquest in, 92-3 ; 
general assembly of, 95; proclamation of 
Charles II inviting settlers to, 95. 

James I, granted first Virginia charter to 
London and Plymouth Companies, 70; 
charter of, less liberal than that of Eliza- 
beth, 71 ; question respecting power of, to 
administer justice, 345. 

James, Vice Chancellor, decision of, suit of 
United States against Confederate govern- 
ment, 463. 

Jameson, Professor, cited, respecting case of 
The Active, 222, 223; on influence of 



Court of Appeals, 225; on Grenville's Act 
of 1770 and method of Confederation for 
settling boundary disputes, 230-1. 

Jamestown, first representative assembly in 
America held at, 74. 

Jay, John, on Articles of Confederation, 46- 
7; clerk of commission to adjust New 
York-New Jersey boundary dispute, 1767, 
116; and The Federalist, 164, 205, 314, 362; 
agent, Massachusetts-New York boundary 
dispute, 235 ; advocated Constitution in New 
York Convention, 315 ; Chief Justice, Cir- 
cuit Court for District of New York, 350; 
commissioner, cases of United States v. 
Todd, 353 ; opinion respecting inclusion of 
criminal law in common law, 441. 

Jefferson, Thomas, drew up report rejecting 
Lord North's conciliatory resolution, 28; 
chairman drafting committee. Declaration 
of Independence, 29; draft in writing of, 
presented to Congress, 30, ZZ, 135 ; state- 
ment of, respecting authorship of Declara- 
tion of Independence, 30 note; influenced 
by English liberal writers, 36, 36 note; 
and French ideas and conceptions, 36, 36 
note; views of, respecting Articles of Con- 
federation, 47; on colonial laws of New 
England, 97; on colonial laws, 98; re- 
fused third term as president, 195. 

Jekyll, Sir Joseph, on laws of conquest and 
discovery, 93 note. 

Jennings v. Carson, 225. 

Johnson, Andrew, and Reconstruction Acts, 
383-4. 

Johnson, Thomas, member court, Massachu- 
setts-New York boundary dispute, 235. 

Johnson, William Samuel, Connecticut dele- 
gate to Federal Convention, 152; on nec- 
essity of maintaining State governments, 
180; statement of, concerning different con- 
ceptions of a State, 181 ; agent, case of 
Pennsylvania v. Connecticut, 232; member 
court, Massachusetts-New York boundary 
dispute, 235 ; motion of, respecting exten- 
sion of jurisdiction of Supreme Court, 
263, 264, 265, 374; considered special pro- 
vision for settling suits between States un- 
necessary, 269; member Committee on 
Style, 277 note. 

Johnson, Mr. Justice, opinion, respecting 
Cherokee Nation as a domestic State, 388; 
on common-law jurisdiction in criminal 
cases, 441-2; on applicability of common 
law in cases covered by special legislative 
act, 442. 

Johnson v. Mcintosh, 91, 421. 

Joint-stock Companies, definition of, 68 ; ad- 
vantages of, 69. 

Jones V. United States, 379 note. 






591 



Jones, Joseph, member of court, Pennsylva- 
nia-Connecticut boundary dispute, 232. 

Journals of the Continental Congress, 17, 231, 
232, 235, 236, 241. 

Journal of Federal Convention, 155, 156, 162, 
250, 251, 252. 

Judicial commissions, temporary, provided 
for, by ninth article of Confederation, 229, 
341-2; nature of, 229; influence of Privy 
Council on, 230; cases settled by, 231 et 
seq.; significance of, 238; Congress refused 
to appoint, controversy between New Jer- 
sey and Virginia, 242-4. 

Judicial power, under Confederation, 44, 45, 
109, 119 note. 126, 160, 210 et seq., 229 et 
seq.. 247-9, 268-9, 341-2, 455-7; determina- 
tion of constitutionality by, 65, 101, 121, 
349, 374; extension of, to territorial dis- 
putes, 102, 108, 119 note, 125; in colonies, 
132-3; under State constitutions, 133, 136, 
138-9; provisions for, Randolph plan, 159, 
250 et seq.; provision for, Patterson plan, 
177, 250; necessity for a common judiciary, 
247; vested in Supreme Court, 252 et seq., 
374 et seq.; extended to international ques- 
tions, 268 et seq., 378; of States, bound 
by the Constitution, 303; nature of, 341-70; 

■ extent of, defined by Congress, 342; in 
whom vested, 342, 398; defined by Court 
itself. 343; influence of English common 
law on nature of, 343; English cases on, 
344-9; an American case, 349; distinction 
between judicial and othe?r powers, 350 et 
seq.; finality of decision essential to, 360, 
400; only power possessed by court, 374, 
375 ; contrasted with political powers, 376 
et seq.; extent and exercise of, 398-404; 
of Federal and State courts concurrent, 
413-14; political power may become ju- 
dicial, 420-4; extends to cases only. 427- 
434; relation of, to law and equity, ad- 
miralty, martime and international law, 
438 et seq.; of United States over States, 
453. 

Judiciary Act, 1789, 350, 402-4, 414, 416. 429. 

Jurisdiction, appellate, of Congress under 
Confederation, 44; admiralty, 213, 218, 220 
et seq.; defined, 400; determination of, 401- 
2; maritime, 447-9. See also Supreme 
Court, Jurisdiction of. 

Kendal, Postmaster-General, v. Stockton and 
Stokes, 384. 

Kennedy, Archibald, member Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Kennet v. Chambers, 379 note. 

Kent, James, on dependency of territories 
upon Congress, 295. 



Kentucky, creation and admission of State 
of, 290. 

Kepner v. United States, 331, 442-3. 

Kilbourn v. Thompson, 342-3. 

King. See Crown of England. 

King in Council, appeal to, 100 et seq., 213, 
348, 420; legislative power of, 200; New 
Hampshire dismembered by, 238. 

King's Bench, decisions of, 94, 346-7, 347-8. 

King V. McLean Asylum, 431. 

King of Spain v. Machado, 422. 

King's Province. See Rhode Island. 

King, Rufus, on procedure in Federal Con- 
vention, 154; on representation of New 
Hampshire in Federal Convention, 175; 
motion of, respecting Randolph and Pat- 
terson plans, 179; agent, Massachusetts- 
New York boundary dispute, 235 ; opposed 
to limitation of judicial power of United 
States, 252; member. Committee on Style, 
277 note. 

Koonce v. Doolittle, 400. 

Kwananakoa v. Polyblank, 454-5. 

Kyd, Stewart, on corporations, 66-8. 

La Abra Silver Mining Company v. United 
States, 431-3. 

Land and Trading Company, grant by Coun- 
cil of New England to, 79. 

Land tax, provision respecting, in Articles of 
Confederation, 42. 

Lane County v. the State of Oregon, 370. 

Langdon, John, on spirit of concession neces- 
sary for establishment of Constitution, 172. 

Law and Equity, definition of, 438 ; how un- 
derstood by framers of Constitution. 440-1. 

Law of Nations, in the Constitution, 167; 
power of Congress to punish offences, 
against, 167, 211; recognized letters of 
marque and reprisal, 167; recognizes cap- 
tures on land and water, 167 ; rights of 
presidents under, 382; relation of, to com- 
mon law, 439, 448-9. 

Law, Richard, commissioner, case of United 
States V. Todd, 353. 

Lechmere. See ^\'inthrop v. Lechmere. 

Lee, Arthur, negotiated treaty with France, 
February 26, 1778, 35. 

Lee, Richard Henry, motion of. in Congress 
for a declaration of independence, 29-30, 
34, 40, 135. 217; views of, respecting Jef- 
ferson's draft of the Declaration of Inde- 
pendence, 30 note. 

Legislative Department, two branches of, 25, 
76, 158, 172-3; provisions for, Randolph 
plan, 158-9, 161, 172 et seq., 190, 250-1; 
provisions for, Patterson plan, 177-8; com- 
promises respecting, in Federal Conven- 
tion, 172, 187 et seq.; questions of repre- 



592 



sentation in, 172, 173 et seq.; equality of 
States in, 175-7; Connecticut proposal con- 
cerning, 179; diversity of views respecting, 
181 et seq.; victory of the smaller States 
in the matter of the, 185 ; southern States 
and two-thirds vote of, 188; legislative 
branch a check upon executive in matter 
of treaties, 198-200; a check upon the 
legislature, 200 et seq.; impeachment of of- 
ficers of the United States removed from 
judicial to, 272; vested with execise of 
political power, 376 et seq. 

Legislative Powers, prescribed by May- 
flower compact, 5 ; of Confederation, 43 et 
seq., 137, 160, 173, 181, 341 ; of East India 
Company, 70 ; not granted by first Virginia 
charter, 71 ; of London Company, 72 ; of 
colonies, 84 note, 85 note, 86 note, 132-3 ; 
of Privy Council, 99; under State consti- 
tutions, 136-7: grant of, under Constitu-. 
tion, 137, 190-1, 280. 342, 467. 

Leverett, Governor of Massachusetts, 105, 
106. 

Lexington, battle of, 26, 28, 129. 

Lincoln, Abraham, blockade of southern 
ports by, 382-3. 

Livmgston, Phillip, member, Massachusetts- 
New Hampshire boundary commission, 
119 note. 

Livingston, Robert R., member, drafting 
committee. Declaration of Independence, 
30 ; remarks, case of Pennsylvania v. Con- 
necticut, 234; agent, Massachusetts-New 
York boundary dispute, 235 ; advocated 
Constitution in New York Convention, 315. 

Livingston, Walter, agent, Massachusetts- 
New York boundary dispute, 235. 

Locke, doctrines of, in Declaration of Inde- 
pendence, 30 note, 35, 36 note; Thomas 
Jefferson a student of, 36 note. 

London Company, southern portion of North 
American coast assigned to in 1606, 71, 77; 
provisions of charter of 1609 to, 71-2, 77; 
summary of third charter of 1612 to, 72-4; 
commission of, convoking representative 
assembly at Jamestown, 64 ; powers of, re- 
sumed by Crown in 1624, 76; separated 
from Plymouth Company under charter of 
1609, 77. 

London's Plantation in Massachusetts Bay in 
New England, title of local government 
established at Salem by Massachusetts 
charter, 1628-9, 81. 

Lords Commissioners of Trade and Planta- 
tions, opinion rendered to, respecting Eng- 
lish common law in relation to colonies, 
96, 97 ; foundation and purpose of, 99, 100, 
109; appeals from colonial courts to, 100; 



decree of, respecting Atherton purchase, 
103; disallowed New Jersey Act of 1748, 
111, 114-15, 117; case of Penn v. Lord 
Baltimore referred to, 123. 

Lords of Appeal. See Appeal, Lords of. 

Lottawanna, The, 477 note. 

Lowell, John, agent, Massachusetts-New 
York boundary dispute, 235. 

Luke V. Hulbert, 224 note. 

Lurton, Mr. Justice, on constitutional equal- 
ity of States, 294. 

Luther v. Borden, 303 note, 379 note, 380-2, 
392. 

Madison, James, urged a Federal Constitu- 
tion, 47, 48 ; summary of weaknesses of 
Articles of Confederation by, 47-53; char- 
acter of, 48; leadership of, in Federal Con- 
vention, 48; views of, respecting public 
of35ces, 53 ; and authorship of Virginia 
Plan, 53, 195, 200, 203, 250, 279 ; on situa- 
tion of States in matters of commerce, 55; 
part of, in convocation of Annapolis Con- 
vention, 56, 145 ; Virginia delegate to An- 
napolis Convention, 56 ; reporter of the 
Federal Convention, 147 ; " father of the 
Constitution," 147, 237, 335 ; on terms " na- 
tional " and "federal," 161-4, 203; and The 
Federalist, 164, 205, 314, 362; on coercion 
of States, 165. 203-4, 206-7, 257, 279, 280. 
281 ; opposed to equal suffrage of States 
in national legislature, 173-4, 177; on sit- 
uation of larger States respecting Senate 
suffrage compromise, 186-7; statement of, 
respecting president as agent in treaties, 
198 note ; in favor of a check upon the 
legislature, 200-1; in favor of granting 
Congress power to negative State legis- 
lation, 202 ; member of court, South Caro- 
lina-Georgia boundary dispute, 237; op- 
posed to limitation of judicial power of 
the United States, 252-3; favored estab- 
lishment of inferior tribunals by national 
legislature, 253 ; views of, respecting nomi- 
nation and appointment of Supreme Court 
judges, 255, 258; on jurisdiction of national 
judiciary, 259, 264, 265; motion of, re- 
specting expression "judicial power," 268; 
in favor of giving paramount effect to 
treaties, 276-7; member. Committee on 
Style, 278 note; in favor of equality of 
Western States, 291, 294; views of. re- 
specting the system of double Constitu- 
tions, 302; in favor of popular ratification 
of Constitution, 305-6, 307; opposed to 
conditional ratification of the Constitution, 
309; proposed amendments to Constitution, 
310, 323 et seq.; advocate of Constitution 



i 



593 



in Virginia Convention, 313; in favor of 
incorporating amendments into text of 
Constitution, 121; on method of electing 
president, 329; on amendments to Consti- 
tution, 329-30; on interpretation of Con- 
stitution by State Conventions, 331-2; let- 
ter to Hayne, on Constitution, 335-7 ; on 
necessity for a Supreme Court, 358; views 
of, respecting exercise of power by courts, 
374; proposed investing national judiciary 
with political functions, 418. 

Maine, Sir Henry Sumner, on French in- 
fluence on American political philosophy, 
35-6; on the Supreme Court, 280. 

Mansfield, Lord, on legislative power of 
King, 94, 95, 96, 99, 347; on by-laws, 347; 
on international and common law, 448. 

Marbury v. Madison, 361, 366-8, 384, 427. 

Maritime Jurisdiction, judicial power of the 
United States extended to cases of, 212, 
447, 449. 

Marshall, Chief Justice, on Articles of Con- 
federation, 47; on sovereignty of States, 
59-60 ; on rights of discovery, 91 ; case of 
The Active tried before, 222; on division 
of sovereign powers, 334, 369; on duties 
of judicial department, 361, 370; on de- 
termination of constitutionality by judic- 
iary, 364; on act of Congress enlarging 
original jurisdiction of Supreme Court, 
366-8; on the judiciary and international 
relations, 377-8; on the judicial nature of 
a treaty as a contract, 378 ; opinion of, 
respecting the appellate jurisdiction of the 
United States and the liability of States, 
409-12; on cases arising in law and equity, 
412, 438; on concurrent powers of Fed- 
era! and State Courts, 416; "case" de- 
fined by, 427-8; on state as a corporator 
not exempt from suit, 464-5. 

Martin, Luther, in favor of equal suffrage 
of States, 176; member compromise com- 
mittee. Senate suffrage controversy, 185; 
motion of, respecting supremacy of laws 
of union, 275-6; opinion of, respecting 
amendments to Constitution, 300, 301 ; in 
favor of separation of judicial and politi- 
cal powers, 418. 

Martin v. Hunter, 405-9, 410, 453. 

Maryland, represented at Albany Congress, 
11 ; governed under a charter to a pro- 
prietor, 22; last state to ratify Articles 
of Confederation, 40, 231, 293; compact 
of, with Virginia an encroachment on 
Federal authority, 49; laws of, favoring 
own citizens, 49; part of, in Annapolis 
Convention, 55, 56, 145; representative as- 
semblies in, 84 note; grant of, to second 



Lord Baltimore, 121 ; charter of, 121, 121 
note, 122-3; boundary dispute, 121-5; col- 
onial governor and courts of, appointed by 
proprietor, 138; appointed delegates to 
Federal Convention, 147; instructions to 
delegates, 153 ; in favor of equal repre- 
sentation of States in Senate, 184, 185; 
constitution of, 196, 307; views of, re- 
specting independence of Rhode Island, 
241 ; contention of, respecting northwest- 
ern territory, 291-2, 292 note; vote of, on 
question of popular ratification of Con- 
stitution, 305, 308; ratification of Consti- 
tution by, 311, 571 note; unconstitutional 
law of, taxing agent of government, 368- 
9; ratification of first ten amendments by, 
572 note. 

Mason, George, Virginia delegate to An- 
napolis Convention, 56; drafted Virginia 
Bill of Rights, 135; on procedure in Fed- 
eral Convention, 154; views of, respecting 
coercion of States, 164-5, 203, 205-6 ; mem- 
ber compromise committee. Senate suffrage 
dispute, 185 ; opposed to recognition of 
slavery in Constitution, 189; favored crea- 
tion of inferior tribunals, 259; in favor 
of equality of Western States, 291, 294; 
in favor of popular ratification of Con- 
stitution, 305-6, 307; opposed Constitution 
in Virginia Convention, 313 ; proposed bill 
of rights to Constitution, 328. 

Massachusetts, separatists from, founded 
Connecticut, 4 ; General Court and Assembly 
of, 4, 78, 82-3, 132 ; member of New Eng- 
land Confederation, 6; jurisdiction of, not 
recognized by Rhode Island, 7; delegates 
from, to Albany Congress, 11 ; delegates 
from, to First Continental Congress. 23 ; 
resolution of House of Representative of, 
respecting a Continental Congress, 23 ; 
troops raised by, without consent of Con- 
federation, 49; government developed by, 
model for northern colonies, 64; charters 
of, 65, 79-82, 83-4, 84 note. 131. 132; com- 
pared with Virginia. 78, 83 ; Governor and 
Company of the .Mattachusetts Bay in 
Newe England, 79, 80, 81 ; representative 
assemblies in, 82-3, 84 note; judiciary 
under constitution of, 138-9; Bill of Rights 
of, 140: appointed delegates to Federal 
Convention, 147; instructions to delegates, 
152; vote of, on question of equal suf- 
frage of States in Senate, 184; opposed 
to taxing exports, 188; practice of, re- 
specting appointment of public oflScials, 
199; first prize court established m, 216; 
Provincial Congress of, 216; selection of 
judges by executive with consent of leg- 



594 



islative in, 258; recognized independent 
statehood of Vermont, 241; claim of, to 
western New York, 292 note; claim of, 
to northwest territory, 292; in favor of 
popular ratification of Constitution, 305, 
308; ratification of Constitution by, 310, 
571 note ; amendments to Constitution pro- 
posed by, 330; unconstitutional act of Con- 
gress taxing an agent of, 369. 

Massachusetts v. New York, 118 note, 234- 
6, 237. 

Matthews, Mr. Justice, on a government of 
laws, 140; on interpretation of terms of 
common law, 443-4; on immunity of States 
from suit, 459. 

Mayiiower, The, 3. 

Mayflower Compact, entered into by Pil- 
grims, 3 ; legislative power prescribed by, 
5; set forth American conception of State 
as agent of the people, 9. 

Melville, General, governor of Grenada, 94, 
96. 

Mexico, Treaty of February 22, 1819, with 
United States, 430. 

Militia, State, power of Congress over, 
167-8. 

Miller, Mr. Justice, on three-fold division 
of government, 342-3; judicial power de- 
fined by, 343; on United States as claim- 
ant and actor in court, 461. 

Minor v. Happersett, 303 note, 444. 

Mississippi v. Johnson, 383-4, 386. 

Money, power to borrow, and emit bills 
given to Congress, 43, 166; power to coin 
and regulate value of, 166. 

Monroe, James, on results of the Declaration 
of Independence, ZZ; member court, Mass- 
achusetts-New York boundary dispute, 
235. 

Montesquieu, three-fold division of govern- 
ment, a principle borrowed from, 250, 341, 
342. 

Moore v. United States, 444. 

Moot Cases, judicial power of Constitution 
does not extend to, 434. 

Morey, on Virginia charter of 1606, 70; 
on colonial constitution of Virginia, 76. 

Morgan, George, agent. New Jersey -Virginia 
dispute, 242, 243, 244; petition of, to Con- 
gress, 243-4. 

Morley, Lord, on influence of French politi- 
cal philosophy, 36. 

Morris, Charles, member, New York-New 
Jersey boundary commission, 116. 

Morris, Gouverneur, opposed to equal suf- 
frage of States, 148, 173; views of, re- 
specting tenure of judges, 263; motion of, 
respecting extension of jurisdiction of Su- 



preme Court, 264; doubts of, respecting 
appellate jurisdiction of Supreme Court, 
273 ; in favor of giving paramount effect 
to treaties, 211; member. Committee on 
Style, 277 note; opposed to equality of 
Western States, 291, 293, 294; in favor 
of equal suffrage of States in Senate, 300; 
question of, respecting extent of judicial 
power to matters of fact as well as civil 
law, 447. 

Morris, Robert, opposed to equal vote of 
small States, 148; proposed George Wash- 
ington as President of Federal Conven- 
tion, 148-9. 

Morse, Mr. Justice, on judicial power and 
moot cases, 434. 

Munday v. Vail, 400. 

Murray v. Hoboken, 432. 

Muskrat v. United States, 433. 

Nabob of the Carnatic v. The East India 
Company, 379 note, 386. 

Nathan v. Commonwealth of Virginia, 58-9, 
455. 

Nations, and the question of coercion, 282; 
immunity of, from suits, 452, 454; a court 
of the, 468. See also Law of Nations, 
Society of Nations. 

Naturalization, Rule of, power vested by 
Constitution in Congress to establish, 166; 
provisions for, Patterson plan, 178. 

Navigation Acts, 26. 

Navigation, laws of, repealed by Parliament 
in 1849, 28; state of, under Confederation, 
145 ; demands of, considered by Annapolis 
Convention, 145-6; position of certain 
States in respect to, 188-9; recommenda- 
tions of committee concerning acts of, 
Federal Convention, 188; two-thirds re- 
quirement inserted in report, 188 ; com- 
promise respecting, in Federal Convention, 
189-90. 

Navy, power of Congress to build and equip, 
43, 167 ; president commander-in-chief of, 
167, 197; not to be kept by States in time 
of peace, 210, 212. 

Nelson, Mr. Justice, on division of sov- 
ereign powers, 335; held that States can- 
not tax agency of the government, 369; 
on court's relation to the government and 
to the States, 369-70; opinion of, invol- 
ving distinction between political and ju- 
dicial powers, 386-9. 

Neilson, Thomas, member of court, Pennsyl- 
vania V. Connecticut, 232. 

New England, unpopularity of, 41 ; first 
charter, 1606, 70-1, 77; second charter, 
1620, 77-9; third charter, 1628-9, 79-82; 



595 



northern colonies modeled upon charter 
and institutions of, 71 ; the Plymouth Com- 
pany, 78-9; Council of, 79; charter an- 
nulled in 1684, 82; royal charter of 1691, 
82; Jefferson on colonial laws of, 97; 
grant of, by Charles II to Duke of York, 
122. 

New England Company. See Plymouth 
Company. 

New England Confederation, 1643, indicates 
existence of idea of colonial union, 6; 
aims of, 6, 7; summary of articles of, 6-9; 
subscribed to by commissioners of colon- 
ies, 9 ; prescribes equal representation of 
colonies, 11 ; advantages of union shown 
by, 11; complaint of Rhode Island against, 
101-9; text of, 471-6. See also Commis- 
sioners of New England Confederation, 
and Confederates, New England. 

New England Restraining Act, 1775, 27. 

New Hampshire, represented at Albany Con- 
gress, 11; establishment by, of revolution- 
ary government recommended, 29, 129; 
late attendance of, at Federal Convention, 
58, 175, 176, 185; representative govern- 
ment set up in, 85 note; boundary disputes, 
115, 118 note, 238-41, 421; instructions to 
delegates to Federal Convention, 150; in 
favor of equal suffrage of States, 175, 
185; New Hampshire grants, 238 et seq.; 
recognized independent statehood of Ver- 
mont, 241 ; in favor of popular ratification 
of Constitution, 308; ratification of Con- 
stitution by, 312, 315, 571 note; amend- 
ments to Constitution proposed by, 330; 
ratification by, of first ten amendments, 
572 note. 

New Haven, member of New England Con- 
federation, 7. 

New Jersey, compact of, with Pennsylvania, 
an encroachment on Federal authority, 49 ; 
commercial situation of, 55 ; represented 
at Annapolis Convention, 56, 146; dele- 
gates of, to Federal Convention, 57, 146; 
representative assemblies in, 85 note; 
boundary disputes, 109-18, 238 et seq.; 
grant of, to Lord Berkley and Sir George 
Carteret, 116; in favor of equal represen- 
tation of States in Congress, 174; in favor 
of equal suffrage of States in Senate, 184; 
in favor of independence of Rhode Is- 
land, 241 ; vote of, on popular ratification 
of Constitution, 305, 308; ratification of 
Constitution by, 309, 310, 571 note ; con- 
stitution of, 349; statute of New Jersey 
of 1778 declared unconstitutional, 349; rat- 
ification by, of first ten amendments, 572 
note. 



New Jersey v. Virginia, 238, 239, 242-4. 

New Jersey Assembly Acts relative to boun- 
daries. Act of 1719, 110, 111; Act of 1748, 
111, 114; Act of 1764, 101; Act of 1772, 
117. 

New Jersey Plan. See Patterson Plan. 

New York, represented at Albany Congress, 
11 ; address of Provincial Congress of, to 
Washington, 27 note; laws of, favoring 
own citizens, 49; represented at Annapo- 
lis Convention, 56, 146; charter of, 86 
note; representative assemblies in, 86 note; 
conquered from Dutch and ceded to Great 
Britain by teaty, 91 ; boundary disputes, 
109-18, 118 note, 234-6, 237, 238-41, 292 
note, 387; constitution of, 136-7, 201; sen- 
ate, court of appeals in, 139; appointed 
delegates to Federal Convention, 147; in- 
structions to delegates. Federal Conven- 
tion, 152; ratification of Constitution by, 
secured by Hamilton, 164, 164 note; vote 
of, respecting equal suffrage of States in 
Senate, 184, 185; and independent state- 
hood of Vermont, 241, 290: claim of, to 
Northwest Territory, 244, 292, 292 note; 
opposed to popular ratification of Consti- 
tution, 305 ; ratification of Constitution by, 
312, 314-15, 571 note; amendments to Con- 
stitution proposed by, 330 ; ratification by, 
of first ten amendments, 572 note. 

New York Assembly Acts relative to boun- 
daries, Act of 1717, 109, 110, 111, 113, 
114; Act of 1719, 114; Act of 1754, 114, 
115; Act of 1771, 117. 

New York v. Connecticut, 386. 

New York City, first seat of government 
under Constitution, 322 

Non-Importation, Non-Consumption and 
Non-Exportation Agreement, considered 
by Congress, 26. 

Norris v. Staps, 67. 

North, Lord, Conciliatory Resolution of 
February 27, 1775, 27 \ rejected. 28. 

North and South, distrust between, 41 ; dis- 
tinction between, 77; colonial development 
contrasted, 83. 

North Carolina, delegates of, to First Con- 
tinental Congress, 24; commercial situa- 
tion of, under Confederation, 55 ; ratifica- 
tion of Constitution by, 46, 309, 571 note; 
appointed delegates to Federal Convention, 
49, 146 ; instructions to delegates Federal 
Convention, 150: charter of, 85 note; rep- 
resentative assemblies in, 85 note ; bound- 
ary disputes, 118 note, 119 note; vote of, 
respecting equal suffrage of States in Sen- 
ate, 184, 185 ; in favor of popular ratifi- 
cation of Constitution, 305, 308; ratifica- 



596 



tion of constitution by, 316, 571 note ; 
amendments to Constitution proposed by, 
330; ratification by, of first ten amend- 
ments, 572 note. 

Northwest Ordinance, approved by first Con- 
gress under Constitution, 286 ; summary 
of, 286-90; mterpretation of terms of, 444- 
5; text of, 514-19. 

Northwest Territory, cession of Virginia's 
claims to, 242, 243, 244, 286, 290, 293 ; or- 
dinance for government of, 286 et seq., 
444; Congress pledged to create States 
within, 290, 292 note, 292-3 ; originally part 
of English Province of Quebec, 292 note. 

Officers of the army and navy, to be ap- 
pointed by Congress, 43; Madison's viewr 
of public officers, 53 ; impeachment of na- 
tional officers, Randolph plan respecting, 
159. 

Ohio V. Laflferty, 444-5. 

Oliver, Andrew, member New York-New 
Jersey boundary commission, 1767, 116. 

Olmstead's case, 220, 222. 222 note. 

Osborn v. Bank of the United States, 412- 
13, 428-9, 430. 

Otis, pamphlet of, 2, not used in compilation 
of Declaration of Independence, 25 note. 

Paca, William, judge, Court of Appeals in 
Cases of Capture, 223. 

Pacific Railway Commission, In re, 429-30. 

Pacific Telephone Company v. Oregon, 389- 
93. 

Paine, Mr. Justice, interpretation of terms 
" law and equity," 446-7. 

Paine, Robert Treat, Massachusetts delegate, 
first Continental Congress, 23. 

Pardons, President's power to grant, 197. 

Paris, Treaty of, France and England, Feb- 
ruary 10, 1763, 14, 23, 94, 292, 347; France 
and United States, April 30, 1803, 277. 

Parliament, acts of, infringing upon col- 
onial rights, 14, 23, 24, 46; colonists held 
by Great Britain to be subject to, 22; peti- 
tioned by colonies for redress of griev- 
ances, 23; colonists could not be properly 
represented in, 25; right of, to regulate 
external commerce of colonies, 25 ; Ja- 
maica not represented in, 92 ; power of, to 
legislate for territories subject to Crown, 
93, 94, 95, 96; conclusions of Privy Coun- 
cil sanctioned by, 125. 

Parliamentary Commission, Rhode Island 
charter of 1644 granted by, 85 note. 

Parsons, Theophilus, agent, Massachusetts- 
New York boundary dispute, 235. 

Patents, power over, given to Congress, 166. 



Patent, Letters of. See Letters of Patent. 

Patterson, William, delegate of New Jersey to 
Annapolis Convention, 56; member, com- 
promise committee. Senate suffrage contro- 
versy, 185 ; views of, respecting equal suf- 
frage of States, 174; member of court, 
Massachusetts-New York boundary dis- 
pute, 235 ; summary of Randolph proposals 
by, 251 ; in favor of ratification of Consti- 
tution by State legislatures, 305; on rela- 
tion of a constitution to laws passed by 
a legislature, 366. Se^ also Patterson 
Plan. 

Patterson Plan, submitted to Federal Con- 
vention, 164, 177, 256; rejected in favor 
of Randolph resolutions, 164, 179; referred 
to Committee of Detail, 164, 260; referred 
to Committee of the Whole, 177, 257; 
nine resolutions of 177-8; a revision of 
the Articles of Confederation, 178, 256; 
result of, 179; specified a plural executive, 
195 ; provided for a check upon the legisla- 
ture, 200; provision of, respecting coercion 
of States, 203, 205 ; provision of, for ju- 
diciary, 250, 251 ; government to avail it- 
self of State courts according to, 256-7; 
made laws of union within grant of power 
superior to laws of States, 275 ; pro- 
vision of, for admission of new states, 
291 ; text of, 525-7. 

Peace, to be declared by Congress, 43; Ran- 
dolph resolution respecting questions in- 
volving, 159. 

Penn v. Lord Baltimore, 101, 121-5, 386, 
387, 420-1. 

Penn, William, " scheam " of, for union of 
colonies, 6, 9, 10, 11, 476-7; idea of union, 
9, 10; essay of, Toward the Present and 
Future Peace of Europe, 9; plan of, for 
colonial union shows method of making 
colonies self-governing dominions, 11; 
agreement of sons of, with Lord Balti- 
more, 1732, 101, 104, 420-1; charter of 
Pennsylvania granted to, 122. 

Penhallow v. Doane, 447. 

Pennsylvania, delegates from, to Albany 
Congress, 11; compact of, with New Jer- 
sey, an encroachment on Federal author- 
ity, 49; interest of, in navigation of Chesa- 
peake Bay, 55-6; represented at Annapo- 
lis Convention, 56; appointed delegates to 
Federal Convention, 57, 146; instructions 
to delegates. Federal Convention, 150; 
charter of, 85 note, 122, 123 ; representa- 
tive assemblies in, 85 note; boundary dis- 
putes, 121-5, 231-4, 237, 238. 241-2, 243, 
292 ; but one branch of legislative power 
in, 136; constitution of, 136, 365; colonial 



i:^EX 



597 



governor and courts of, appointed by pro- 
prietor, 138; proposal of, for bicameral 
system in national legislature, 172; op- 
posed to equal suffrage of States, 173; 
opposed to election of senators by State 
legislatures, 180; opposed to equal suf- 
frage of States in Senate, 174, IBS; re- 
pealed statute, authorising juries to decide 
admiralty causes, 222 ; in favor of popular 
ratification of Constitution, 305, 308 ; rat- 
ification of Constitution by, 310, 571 note; 
ratification of first ten amendments, 310, 
572 note. 

Pennsylvania v. Connecticut, 231-4, 237. 

Pennsylvania v. Virginia, 2^7, 238, 241-2, 
243. 

Pensions, acts of Congress respecting, 350, 
365. 

Percy v. Stranahan, 379 note. 

Peters, Judge, decision, case of The Active, 
222; District Judge, Circuit Court for Dis- 
trict of Pennsylvania, 350. 

Phelps, Edward John, on duty of Supreme 
Court respecting Constitution, Z3Z. 

Philadelphia, meeting place of First Conti- 
nental Congress, 23; meeting place of Fed- 
eral Convention, 57, 146; Penn anxious to 
secure land for, 103 ; petition of citizens 
and merchants of, respecting Court of Ap- 
peals in Prize Cases, 219, 239. 

Phillips V. Payne, 379 note. 

Phillips, Erasmus James, member, Massa- 
chusetts-New Hampshire boundary com- 
mission, 119 note. 

Pickering, observations of, respecting Dec- 
laration of Independence, 30 note. 

Pilgrims, enters into Mayflower Compact, 3 ; 
Connecticut founded by separatists from, 
4; views of, in matter of compact, 5. 

Pinckney, Charles, on attitude of smaller 
States, respecting creation of legislature, 
179; motion of, on question of power to 
negative State legislation, 178 note; on 
distinct commercial interest of States, 188- 
9; in favor of appointment of supreme 
court judges by legislature, 255 ; proposal 
of, respecting extension of jurisdiction of 
Supreme Court, 264. 

Pinckney Plan, submitted to Federal Con- 
vention, 163, 251 ; referred to Committee 
of Detail, 164, 251, 260; treaty-making pro- 
vision in, 198 note ; text of, 522. 

Pinckney, Charles Cotesworth, motion for 
compromise, Senate suffrage controversy, 
184; on inclusion of slaves in rule of 
representation, 187 ; on distinct commer- 
cial interests of States, 189. 

Pines, Isle of, 379 note. 



Piracies and felonies committed on the high 
seas, Randolph plan respecting, 159; ninth 
article of Confederation deals with, 210; 
courts of the Confederated States for trial 
of, 211 ; power of Congress to define and 
punish, 211, 215; necessity of rules for 
capture and disposition of, 213; trial of, 
under Confederation, 214 

Plantations. See Council for the Govern- 
ment of Foreign Plantations. 

Piatt Amendment, 379 note. 

Pleas. See Courts of Common Pleas. 

Plymouth, member of New England Con- 
federation, 7; jurisdiction of, not recog- 
nized by Rhode Island, 7; signs Arti- 
cles of New England Confederation, 9; 
general Court of, 9; Council of Plym- 
outh for New England, 77-8 ; representa- 
tive assembly in, 84 note; Rhode Island 
complains against commissioners of, 102. 

Plymouth Company, northern portion of 
North American coast assigned to, by 
charter of 1606, 70, 71 ; separated from 
London Company by charter of 1609, 77; 
second charter of, 1620, 77-9; becomes 
Council of Plymouth for New England, 
77-8. -^ 

Political power. See Judicial power. 

Poll tax, 'distinguished from land tax, 42 

Pollock, Sir Frederick, on Rousseau's m- 
fluence on American political philosophy, 
36 note. 

Popham, Sir John, drafted first Virginia 
charter, 70. 

Post offices, to be established and regu- 
lated by Congress, 43, 166. 

Post roads, power of Congress to estab- 
lish, 166 

Potomac River, freedom of navigation of, 
145. 

President, power of Congress under Con- 
federation to appoint, 43; commander-in- 
chief of army and navy, 167, 197; method 
of election of, 196-7; oath of office of, 
197; may be removed from office, 197; 
powers of, 197 et seq.; and treaties, 197- 
9; public ministers appointed and received 
by, 199; veto of, on proposed legislation 
of Congress, 200-2: conduct of interna- 
tional relations confided by Congress to. 
376; rights of, under international law, 
382; duty of, respecting acts of Congress, 
383-6. See also Executive. 

Prioleau v. United States and Andrew John- 
son, 461-2. 

Privy Council, appeal to, from colonial 
courts, 96, 101 et seq-, 348 ; prerogatives 
of King exercised in, 99; legislative, execu- 



598 



tive and judicial powers of, 99; influence 
of, on settlement of boundary disputes, 
230-1 ; influence of, on judicial commis- 
sions, 230; nature and jurisdiction of, 109; 
decision in New York-New Jersey boun- 
dary controversy, 117. 

Prize, ninth article of Confederation deals 
with, 210; courts of the Confederated 
States for trial of cases of, 211 ; power 
of Congress to define and punish, 211 ; 
necessity of prize procedure, 215 ; appeal 
to Congress from colonial courts in mat- 
ters of, 217. 

Prize Cases, 382-3. 

Prize Courts, first, established in Massa- 
chusetts, 216 ; resolution of Congress under 
Confederation respecting, 216 et seq.; an 
international court of prize, 447. See also 
Court of Appeals in Cases of Capture. 

Proclamation of Rebellion, 1775, 28. 

Proclamations, 345-6. 

Prohibitions Del Roy. 345. 

Providence Plantation. See Rhode Island. 

Provost, William, member, Massachusetts- 
New Hampshire boundary commission, 
119 note. 

Putnam, Circuit Judge, on distinction be- 
tween " cases " and " controversies," 431. 

Pynchon, William, member of court, South 
Carolina-Georgia boundary dispute, 237. 

Randolph, Edmund, Virginia delegate to An- 
napolis Convention, 56; opening address 
of, Federal Convention, 156-7; advocate 
of limited and specified powers, 162; on 
victory of small States in question of 
equal suffrage in Senate, 185-6; in favor 
of a plural executive, 195 ; member, Com- 
mittee of Detail, 260. 

Randolph Plan, authorship of, 53, 158, 195, 
200, 203, 250, 261, 279; fifteen resolutions 
of, 158-9; provisions of, for national leg- 
islature, 158-9, 161, 172 et seq.. 190, 
250-1 ; provision of, for national execu- 
tive, 158-9, 161, 194-5, 199, 200, 250; pro- 
vision of, for national judiciary, 159, 
161, 250; division of, into four groups, 
159; not based on Articles of Confedera- 
tion, 160; terms " national " and " federal " 
in, 161, 164, 202; prescribes a union 
of free states, 161 ; referred to Commit- 
tee of Detail, 164; reported from Com- 
mittee of the Whole, 176, 177; recom- 
mitted to Committee of the Whole with 
Patterson Plan, 177; Patterson plan re- 
jected in favor of, 164, 179; basis of dis- 
cussion in Federal Convention, 179; ob- 
stacles in way of a Constitution according 



to, overcome, 190; provision of, respect- 
ing coercion of States, 203 ; in original 
form, not pleasing to small States, 256; 
favored by majority of Convention, 257; 
made laws of Union within grant of power 
superior to laws of the States, 275 ; pro- 
vision of, for admission of new States, 
290-1 ; provision of, for amendment to 
Constitution, 299, 300, 301; provision of, 
for ratification of Constitution, 305 ; pro- 
vision of, for a government per interim, 
321 ; text of 520-2 ; text of report of Com- 
mittee of Whole on, 524-5; text of, as 
revised by Convention and referred to 
Committee of Detail, 529-32. 

Randolph, Peyton, president. First Conti- 
nental Congress, 23; president. Second 
Continental Congress, 26. 

Ratification, of Articles of Confederation, 
40, 50, 53, 58, 59, 210, 292, 305 ; of colonial 
laws, 75. 

Ratification of Constitution, certain amend- 
ments insisted on by States before, 46; 
in New York, secured by Hamilton, 164, 
314; provision for, 301; by special State 
conventions, 301 et seq.; not dependent 
upon approval of three-fourths of States, 
265; discussion of mode of, 305-8; spirit 
of the, 309; by various States, 309 et seq.; 
difficulties of, 312-14; action of Congress 
upon, 322. 

Read, George, on equal suffrage of States, 
151-2, 173-4; Hamilton project respecting 
a consolidated form of government ap- 
proved by, 164 

Reading, John, member, Massachusetts-New 
Hampshire boundary commission, 119 
note. 

Rebellion, Proclamation of, 1775, 28. 

Reconstruction Acts, 1867, 384, 386. 

Reed, George, member of court, Massachu- 
setts-New York boundary dispute, 235. 

Reed, Joseph, agent, case of Pennsylvania 
V. Connecticut, 232. 

Regulated Companies, defined, 68 ; personal 
independence of members of, 69. See The 
Russia, The Eastland, and The Turkey 
Companies. 

Reprieves, president's power to grant, 197. 

Representation, system of, prescribed by 
Constitution, 172; under Randolph plan, 
173; different views respecting, 173 et 
seq.; proportional, in House of Represen- 
tatives, 179-80; equal in Senate, 180 et 
seq.; Franklin's conciliatory proposal re- 
specting, 182, 185; by numbers, as affected 
by slaves, 187. 

Representative assemblies, house of bur- 



599 



gesses in Virginia, 23, 74, 83, 83 note; 
growth of, 82 et s-eq.; bicameral system, 
83, 84 note, 85 note, 86 note. 

Requisitions, power of Congress to make, 
43; provision of Patterson plan respect- 
ing, 177. 

Resolution, The, 224 note. 

Respublica v. De Longchamps, 448-9. 

Respublica v. Sweers, 34, 58, 468. 

Revenue, amount of, to be raised by col- 
onies for government under Confedera- 
tion, 42 ; of Crown of England, 92 ; bills 
of, must originate in lower house of State 
legislature, 136; provision of Randolph 
plan respecting national, 158 ; provision for, 
Patterson Plan, 177. 

Revolution. See American Revolution. 

Revolution, French, influence of Rousseau 
on, 35-6. 

Rex V. Cutbush, 346-7. 

Rhode Island, refused to acknowkledge jur- 
isdiction of Massachusetts and Plymouth, 
7; not a member of New England Confed- 
eration, 7; did not send delegates to Fed- 
eral Convention, 7, 58, 147, 150, 153, 175, 
176, 309; represented at Albany Congress, 
11 ; adoption of Constitution by, 46, 153, 
309, 316, 380, 571 note; representative as- 
semblies in, 85 note; charter of, 85 note, 
103, 105, 131 ; charter provisions of, in 
force after Declaration of Independence, 
84; not obliged to submit colonial laws 
to Great Britain for approval, 101 ; Holden 
and Green petition respecting territory in, 
101-9; boundary disputes of, 118-19 notes, 
125. 270, 379 note, 386-7, 401-2, 405, 420; 
constitution of, 131, 380; colonial gover- 
nor of, elected by people, 138; courts of, 
elected by colonial authorities, 138 ; ad- 
hered to recommendations. Federal Con- 
vention, 153; independence of, 241; dis- 
pute respecting constitutionality of govern- 
ment of, 303 note, 380-2 ; amendments to 
Constitution proposed by, 330; ratifica- 
tion of first ten amendments by, 572 
note. 

Rhode Island v. Connecticut, 118, 119 note. 

Rhode Island v. Massachusetts, 118, 119 
note, 125, 270, 379 note, 386-7, 401-2, 405, 
420. 

Rights. See Bill of Rights. 

Rittenhouse, David, and the case of The 
Active. 222, 222 note 

Robinson v. Campbell, 440. 

Root, Elihu, instructions of, for government 
of the Philippines, 330, 443, 443 note 1. 

Root, Jesse, agent, case of Pennsylvania v. 
Connecticut, 232. 



Rousseau, influence of political doctrines of, 
on Revolution, 35, 36, 36 note. 

Royal African Company, a joint-stock com- 
pany, 68. 

Rules and Orders, Federal Convention. See 
Committee on Rules and Orders. 

Rutledge, Edward, on influence of New 
England in Congress, 41. 

Rutledge, John, seconded election of Wash- 
ington as President of Federal Conven- 
tion, 149; opposed to equal suffrage of 
States, 175; views of, respecting grant 
of power to Congress to negative State 
legislation, 179 note, 202; member com- 
promise committee. Senate suffrage con- 
troversy, 185 ; declined position as member 
of court, case of Pennsylvania v. Con- 
necticut, 232 ; in favor of limitation of 
judicial power of United States to one 
supreme tribunal, 252, 253 ; chairman. Com- 
mittee of Detail, 260, 261 ; modifications of, 
to first draft of Constitution, 261 ; changes 
made by, in Wilson's draft, 261 ; views 
of, respecting tenure of judges, 263; in 
favor of jurisdiction of Supreme Court 
in questions of international obligations, 
265, 268; considered special provision for 
settling disputes between States unnec- 
essary, 269, 270 ; motion of, respecting su- 
premacy of laws of Union, 276; opposed to 
preparation of address to people to accom- 
pany Constitution, 329; in favor of separa- 
tion of judicial and political powers, 329. 

Saint Ildefonso, Treaty of, between Spain 
and France, October 1, 1800, 376, 377. 

Sanborn, In re, 360-1. 

Sandys, Sir Edward, drafted second Vir- 
ginia charter, 71 ; drafted third Virginia 
charter, 72. 

Scotia, The, 447 note. 

Seeley, Sir John, on nature of Englishmen 
to assemble, 22, 83 ; on English ' attitude 
toward colonies, 66. 

Senate, creation of, 172 et seq.; great de- 
bate respecting equality of States in, 180 
ct seq.; duties of, in connection with pres- 
idential election, 196; approval of, neces- 
sary for conclusion of treaties, 198-9; ap- 
proval of, necessary for appointment of 
public ministers, 199, 274; application to, 
in disputes respecting territorial jurisdic- 
tion between States, 271 ; a high court 
of impeachment, 275; approval of, neces- 
sary for appointment of judges of Su- 
preme Court, 27Z, 274; Madison's amend- 
ments to Constitution considered by, 326. 
See also Legislative Department. 



600 



Sergeant, Jonathan Dickinson, agent, case 

of Pennsylvania v. Connecticut, 232. 
Seven Years' War. See French and Indian 
War. 

Shaw, Mr. Chief Justice, on interpretation 
of terms of common law, 445-6. 

Shay's Rebellion, 1787, Madison on, SO. 

Sherman, Roger, member, drafting commit- 
tee of Declaration of Independence, 30; 
Connecticut delegate, Federal Convention, 
152; remarks on question of equal repre- 
sentation, of States, 180-1, 184; views of, 
respecting power of Congress to negative 
State legislation, 201 ; in favor of limita- 
tion of judicial power of United States 
to one supreme tribunal, 252 ; in favor of 
appointment of supreme court judges by 
legislature, 255 ; opposed to creation of in- 
ferior tribunals by Congress, 259; con- 
sidered special provision for settling suits 
between States unnecessary, 269 ; in favor 
of extending judicial power, 271; in favor 
of equality of Western States, 294; con- 
sidered popular ratification of Constitu- 
tion unnecessary, 305; in favor of separa- 
tion of judicial and political powers, 419. 

Shiras, Mr. Justice, on finality of decree of 
Supreme Court, 360-1. 

Shirreft, William, member, Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Siren, The, 459-60. 

Sitgreaves, John, member of court, Massa- 
chusetts-New York boundary dispute, 235; 
District Judge, North Carolina Circuit 
Court, 351. 

Skeene, William, member, Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Slaves, as affecting basis of representation 
in legislature, 187; three-fifths rule re- 
specting, 187 ; right to continue slave- 
trade, insisted on by Southern States, 187, 
189; provision of Constitution relative to 
importation of, 188-90, 299-300. 

Smith V. Alabama, 443, 444. 

Smith, Isaac, member of court, Massachu- 
setts-New York boundary dispute, 235. 
Smith, Melancthon, opposed to Constitu- 
tion, 314; finally voted for Constitution, 
315. 

Smith, Sir Thomas, named in royal charter 
as first governor of East India Company, 
69. 

Society of Nations, question of large and 
small states in, 41 ; union under Articles 
of Confederation an example »for, 47; 
membership of United States in, recog- 



nized by treaties, 60; difficulty of confer- 
ring upon an agent the exercise of large 
sovereign powers, 99; more perfect union 
under Constitution a model for, 147 ; stand- 
ing rules and orders in Federal Con- 
vention a precedent for future conferences 
of the, 156; provisions for judicial set- 
tlement under Confederation capable of 
application to, 213; a permanent court of 
the, 282; political questions of, may be- 
come judicial, 424; sovereignty, the great 
problem of, 467; compared with the union 
of the United States, 467-8; a possible 
solution of the problems of, 468-9. 
South and North, distrust between, 41 ; dis- 
tinction between, 11; colonial development 
contrasted, 83. 
South Carolina, representative government 
set up in, 85 note; boundary disputes, 118 
note, 234, 236-7; steps taken by, to pre- 
vent anarchy during Revolution, 129; ap- 
pointed delegates to Federal Convention, 
147; instructions to delegates. Federal Con- 
vention, 152; opposed to equal suff'rage of 
States in Senate, 184, 185; constitution 
of, 198 note; charter of, 236; in favor of 
popular ratification of Constitution, 305, 
308; ratification of Constitution by, 311, 
312, 571 note ; amendments to Constitu- 
tion proposed by, 330 ; ratification of first 
ten amendments, 572 note. 
South Carolina v. Georgia, 236-7. 
South Carolina v. United States, 335. 
South Carolina, The, 224 note. 
Southern States, and regulations of com- 
merce, 188-9. 
Sovereignty, passed to people of colonies as 
result of the Declaration of Independence, 
33 ; certain powers of, renounced by States 
under Confederation, 42-3; Madison on, 
52; of States, under Articles of Confed- 
eration, 58 ; of States, under Constitution, 
161, 333-4; problem of, in establishment 
of a judiciary, 248-9; not amenable to suit 
without consent, 249, 335 ; of the people 
by Constitution, 308; division of sovereign 
powers, 334-5 ; States protected from at- 
tempts of Government to infringe upon, 
359-60; not always immune from suit, 456; 
suit without consent inconsistent with, 457; 
waiving of, 457; degree of, relinquished 
by a plaintiff sovereign, 462-3, 464-5; cases 
when sovereign becomes subordinate to 
law, 464 ; the great problem of the Society 
of Nations, 467. 
Spaight, Richard Dobbs, motion of, on pro- 
cedure in Federal Convention, 155. 
Spain, ceded Florida to United States by 



601 



treaty, 1819, 354; Treaty of, with France, 
1800 (Treaty of St. Ildefonso), 376-7. 

Spain V. Machado. S-ee King of Spain v. 
Machado. 

Spaniards, Jamaica, conquered from, 92, 95. 

Speedwell, The, 224 note. 

Squirrel, The, 224 note. 

States, large and small, and Franklin's plan 
of union, 17; claims of large and small, in 
first Congress under Confederation, 41; 
nature of union of, under Confederation, 
42; equal suffrage of, in Congress under 
Confederation, 42; sovereign powers sur- 
rendered by, 42-3, 230; jurisdiction of Con- 
gress in controversies between, 44-5; sit- 
uation of, in matters of commerce, 55, 166; 
coercion of, 55, 158, 165, 178, 202, 203, 
279 et seq., 453; Confederation a union of 
sovereign, 58-9 ; precedent for suit of citi- 
zens against, 102; justice to small States, 
118; source of law in matter of constitu- 
tion for union, 139-40; question of equal 
suffrage in Federal Convention, 148, 151, 
152, 153; admission of new, to union, 159, 
178, 286 et seq ; power of Congress to 
regulate commerce with, 166; renounced 
right to wage war unless attacked, 167 ; 
militia of, 168; and question of creation 
of legislature, 172; representation and suf- 
frage of, in Congress, 172 et seq.; views 
of small and large regarding representa- 
tion, 173; power of Congress to negative 
unconstitutional legislation of, 178, 179 
notes, 180, 201-2; distinct commercial in- 
terests of, 188; voluntary self denials of, 
including disarmament, 210; methods of 
settling controversies between, 210-11, 229 
et seq.; courts of, 211, 213; resolution of 
Congress of March 6, 1779, regarding rela- 
tions of, 221 ; as sovereign powers immune 
from suit without their consent, 248-9; 
Randolph plan in interest of large States, 
250; Patterson plan in interest of small, 
250; large and small, and question of crea- 
tion of judiciary, 255 et seq.; attitude of 
large, regarding admission of new States, 
291 ; western boundaries of original not 
clear, 291, 291 note, 292 note: safeguarded 
by Constitution against partition or invol- 
untary union, 294; unanimous consent of, 
not necessary to amend Constitution, 299; 
-representation of small States provided 
by Constitution not subject to amend- 
ment, 300; judicial powers of, 303; power 
of Congress to recognize governments of, 
303 note, 380-2, 392 ; amendments to Con- 
stitution respecting relations of, to union, 
325; powers not delegated are reserved to, 



328; construction placed on Constitution 
by, 333; sovereign powers divided between 
States and United States, 333-4; sover- 
eignty of, protected from attempts of gov- 
ernment to infringe upon, 359-60; cannot 
be compelled to appear in court, 359 ; re- 
lation of court to, 369 ; cannot tax agents 
of government, 368, 369, 412; liability of, 
to suit, 410-12; judicial power of United 
States extended to suits between, 452-3 ; 
provision of Constitution respecting ju- 
dicial power over, 453 ; consent of, to suit, 
454-5; State may sue a State, 464; union 
of, model for Society of Nations, 467- 
8; ratification of Constitution by, 571 note; 
ratification of amendments to Constitu- 
tion by, 572 note. 

State Constitutions. See Constitutions, 
State. 

State conventions, Randolph's resolution re- 
specting submission of amendments to Con- 
federation to, 158; Constitution ratified 
by, 331 ; declarations of, respecting power 
of Supreme Court to declare laws uncon- 
stitutional, 362 ; no attempt at coercion 
in, 452-3: text of resolution transmitting 
Constitution to, 571. 

Statutes, colonial. See Colonial Laws. 

Stewart, Charles, president, New York- 
New Jersey boundary commission, 1767, 
116. 

Story, Mr. Justice, on sovereignty of States, 
334; on power lodged in sovereign, 383; 
held Cherokee Nation to be a nation in 
sense of Constitution, 388; opinion of, re- 
specting nature and extent of the appel- 
late jurisdiction of the United States, 405- 
9; "case" defined by, 430; decision, case 
of De Lovio v. Boit, 447 note : on goods 
of United States subject to contribution, 
461. 

Strong, Mr., in favor of separation of politi- 
cal and judicial powers, 418. 

Sturges V. Crowninshield, 59. 

Style, Committee on. See Committee .on 
Style. 

Suffrage, of States, equal under Confedera- 
tion, 42, 172, 182; resolution of Randolph 
plan respecting, 158, 172; change in rule 
of, opposed by Delaware, 172; in Senate, 
172, 180 et seq.; in House of Representa- 
tives, 179-80. 

Sullivan, James, agent, Massachusetts-New 
York boundary dispute, 235. 

Supreme Court, genesis of authority of, in 
questions of constitutionality, 65; prece- 
dents for power of, over legislatures, 101, 
121; precedents for jurisdiction of, in 



602 



boundary disputes, 108 et seq., 125-6; es- 
tablished under Constitution, 166, 211-12; 
jurisdiction of, in international questions, 
212, 265, 268 et seq.; Court of Appeals in 
Cases of Capture, immediate predecessor 
of, 215, 225, 244; Reports of, 224; tem- 
porary judicial commissions an origin of, 
229; a permanent international judiciary, 
244, 265 ; account of creation of, 247 et 
seq.; problem of sovereignty involved in 
creation of, 248-9; difference of opinion 
in Federal Convention respecting, 249 ; two 
plans for, 249-51 ; question of appoint- 
ment of judges of, 249, 257-9, 273, 274; 
draft proposals concerning, 261-3; tenure 
of judges, 263-4, 274; final judicial author- 
ity of union, 265 ; prototype of a court of 
international justice, 268 et seq.; vested 
with jurisdiction possessed by Congress 
under Confederation, 271-2; original and 
appellate jurisdiction of, 272-3; and im- 
peachments, 272 ; powers of, 274, 374 et 
seq.; jurisdiction of, in cases affecting the 
United States, 289; appeal to, from State 
courts, 304 ; amendments to Constitution, 
subject of appeals in, 330; determination 
of construction of Constitution and en- 
forcement of its precepts duty of, 333 ; 
extent of power of, defined by Congress, 
342 ; passes upon constitutionality of fed- 
eral as well as State legislation, 344, 362; 
original jurisdiction of, 358, 398, 399, 402 
et seq., 453; appellate jurisdiction of, 357, 
359, 398, 399, 402 et seq.; may compel in- 
dividuals but not States to appear, 359; 
finality of decree of, 360; original juris- 
diction of, can not be enlarged or lessened, 
366-7; determination of constitutionality 
by, 374; powers of, purely judicial, 375; 
cases submitted to, involving separation of 
judicial from political functions, 376 €t 
seq.; "supreme" court defined, 400; es- 
tablished by Judiciary Act, 1787, 402-4; 
cases involving extent of jurisdiction of, 
404 et seq.; authority of, showing how 
political questions may become judicial, 
420-4 ; functions in cases only, 425 ; States 
may be sued in, 452 ; precedent for a court 
of the nations, 468. 

Swayne, Mr. Justice, on cases involving 
political department of government, 379 
note. 

Sweden, Treaty of, with United States, April 
3, 1783, 60. 

Sweers. See Respublica v. Sweers. 

Talbot, Sir Charles, opinion, respecting leg- 
islative power of Connecticut, 96, 348; 



on international law and common law, 
448. 

Taney, Chief Justice, opinion of, respecting 
power of Congress to recognize State gov- 
ernments, 303 note, 380-2, 392;, on strictly 
judicial power of United States Circuit 
Courts and judges, 352, 353; on distinc- 
tion between judicial and other powers, 
354-6; on nature and functions of Supreme 
Court, 357; on appellate jurisdiction, 357; 
on reason for creation of judicial power, 
357-8; on original jurisdiction of Supreme 
Court, 358 ; on exemption of States from 
suit without consent, 359, 395 ; on ex- 
ercise of judicial power in sense of the 
Constitution, 359; on protection of sov- 
ereignty of States, 359-60; on separation 
of powers, 360; on coercion of States, 
453. 

Tappan, Mr. Justice, on interpretation of 
terms of common law, 444-5. 

Taxation, contention of colonists respecting 
money raised by, 15; land and poll tax 
distinguished, 42 ; power of Congress to 
lay and collect, 166; of exports, opposi- 
tion of States to, 188; report of commit- 
tee respecting, 188; power of, granted to 
Congress, 190. 

Taxation of Colonies Act, 28. 

Taylor, Colonel, views of, respecting 
Randolph plan combated by Madison, 
162. 

Temporary Judicial Commissions. See Ju- 
dicial Commissions, Temporary. 

Tennessee, creation and admission of State 
of, 290. 

Territories, power of Congress over, 295. 

Texas v. White, 334-5, 370. 

Thistle, The, 218. 

Thompson, Charles, signed Declaration of 
Independence as secretary of Congress, 
30. 

Thompson, Mr. Justice, held case of Chero- 
kee Nation to be a case for executive 
department, 388. 

Tilghman, Chief Justice, case of The Ac- 
tive, 218. 

Todd, Mr. Justice, on terms of law and 
equity, 440-1. 

Toqueville, Alexis de, on American judiciary, 
280. 

Trade, association to cut off trade between 
Great Britain and colonies, advocated by 
Congress, 26; John Adams' view respect- 
ing Acts of, 26, 178 : Act prohibiting Trade 
and Intercourse, 1775, 28. 

Trade Guilds, origin of regulated compan- 
ies, 68. 



603 



Trade and Intercourse, Act prohibiting, 1775, 
28. 

Trade and Plantations, Lords Commissioners 
of. See Lords Commissioners of Trade 
and Plantations. 

Trading Companies, charters granted to, 64 
et seq.; development of, 68-9; i^egulated 
companies, 68; joint-stock companies, 68; 
East India Company, 68, 69-70, 71, 73 ; Lon- 
don Company, 70, 71-2, 74, 75, 76, 77; 
Plymouth Company, 70, 77-9. See also 
Corporations. 

Treaties, provisions respecting. Articles of 
Confederation, 43, 44, 198 note, 248; by 
whom made, 43, 197-8; certain encroach- 
ments on Federal authority, 49 ; supreme 
law of the land, 178, 276-9, 375; provision 
for. South Carolina constitution, 198 note; 
provision for making, in constitution, 198 
note; States not to enter into, 212; liable 
to infractions under Articles of Confedera- 

; tion, 248; jurisdiction of Supreme Court, in 
questions arising under, 268 et seq.; rights 
of the United States, respecting moneys 
received under, 433 ; France and England 
(Treaty of Paris), February 10, 1763, 14,23, 
94, 292, 347; France and the United States,, 
February 6, 1778, 35, 49, 60; United States 
and Holland, October 8, 1782, 49, 60; 
United States and Sweden, April 3, 1783, 
60; United States and Great Britain 
(Treaty of Peace), September 3, 1783, 49, 
60, 276, 277; Spain and France (Treaty of 
St. Ildefonso), October 1, 1800, 376, Z77 ; 
France and United States (Treaty of 
Paris), April 30, 1803, Z77 ; United States 
and Spain, February 22, 1819, 354; United 
States and Mexico, July 4, 1868, 431; 
United States and Cuba, yj7 note. 

Trevett v. Weeden, 261. 

Trial by Jury, right of colonists to, 25, 
98; views respecting, in Federal Conven- 
tion, 329; provided for, in Constitution of 
New Jersey, 349. 

Triquet v. Bath, 448. 

Turkey Company, The, a regulated company, 



Unfinished Portions. See Committee on Un- 
finished Portions. 

Union, the Mayflower Compact, 3; suggested 
by Fundamental Orders of Connecticut, 4 ; 
early plan for, 6; New England Confed- 
eration, 6, 7; Penn's " scheam," 6, 9, 10, 
11; Franklin's plan of 1754, 6, 11-14; im- 
portance of union of colonies, as prece- 
dent, 9 note; Franklin's plan of 1775, 15- 
18; sentiment in favor of, at Albany Con- 



gress, 11 ; of sovereign States by Articles 
of Confederation, 34, 58-61 ; nature of, 
under Confederation, 42. 

United States, independence declared by, 22; 
a body corporate, 34; government of Con- 
federacy styled, 42, 58; management of 
general interests of, 41 ; and suits, 459 et 
seq.; may be sued in Court of Claims, 465. 

United States v. Clarke, 460. 

United States v. Ferreira, 352, 353, 354-6. 

United States v. Hudson and Goodwin, 441-2. 

United States v. McRae, 461. 

United States v. Texas, 465. 

United States v. Todd, 352-3, 354. 

United States v. Wagner, 462-3. 

United States v. Wilder, 461. 

United States v. Wong Kim Ark, 444. 

Van Home's Lessee v. Dorrance, 365-6. 

Vanhorn, Abraham, member, Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Vanhorn, Cornelius, member, Massachusetts- 
New Hampshire boundary commission, 119 
note. 

Vattel, works of, consulted by framers of 
Constitution, 439. 

Vermont, excluded from Albany plan of 
union, 11; constitution of, 136, 290; not a 
colony under the Crown, 136; not a State 
under Articles of Confederation, 136, 
290 ; boundary disputes involving existence 
of, 238-41 ; organized as a State by settlers 
of Green Mountains, 239 ; declared inde- 
pendence, 239, 290, 292 note ; independence 
recognized, 241 ; admitted to Union, Feb- 
ruary 18, 1791, 571 ; ratification of Con- 
stitution by, 571 note; ratified amendments 
to Constitution, 572 note. 

Vetoes, executive and judicial, 200-2. 

Vice-President, method of election of, 196; 
may be removed from office, 197. 

Virginia, governed directly as a province by 
the Crown from 1624 to Revolution, 22, 
76; house of burgesses in, 23, 74, 76, 83, 
84 note; compact of, with Maryland an 
encroachment on Federal authority, 49; 
interest of, in navigation of Chesapeake 
Bay, 55, 56, 145; part of, in Annapolis 
Convention, 56, 145 ; appointed delegates 
to Federal Convention, 57, 145 ; govern- 
ment of, model for southern colonies, 64; 
representative assemblies in, 74, 83, 84 
note; ordinance of July, 1621, creating two 
supreme councils in, 74-5 ; powers of Vir- 
ginia Company resumed by Crown, 1624, 
76; constitution of State of, 76-7, 133; 
compared with Massachusetts colony, 83-4 ; 



604 



boundary controversy with North Caro- 
lina, 118 note, 119 note; Bill of Rights, 
135, 308, 313, 328; instructions to delegates, 
Federal Convention, 150; part of, in bring- 
ing about Federal Convention, 162; op- 
posed to equal suffrage of States, 173; op- 
posed to election of senators by State legis- 
latures, 180; opposed to equal suffrage of 
States in Senate, 184, 185 ; cession to United 
States of claims of, to northwest territory, 
242; claims of, to northwest territory, 
292, 292 note ; in favor of popular ratifica- 
tion of Constitution, 305, 308; ratification 
of Constitution by, 312-14, 315, 571 note; 
amendments to Constitution proposed by, 
330; statute of, forbidding sale of lottery 
tickets, 409; ratification by, of first ten 
amendments, 572 note. 

Virginia Charters. First charter, 1606: pro- 
visions of, 70-1 ; divided British territory 
in America into two sections, 70, 11; less 
liberal than charter to East India Com- 
pany, 71 ; settlements under, did not 
thrive, 71. Second charter, 1609: provi- 
sions of, 71-2; greater powers granted by, 
71; company created a body politic by, 72; 
excluded northern section, 11. Third 
charter, 1912 : granted to London Com- 
pany, 72-4, 79; provisions of, 72-4; added 
powers granted by, IZ. 

Virginia Company. See London Company. 

Virginia v. West Virginia, 102, 125-6. 

Virginian Plan. See Randolph Plan. 

Vischer, Nicholas John, map of New Jersey 
compiled by, 116. 

Waite, Mr. Chief Justice, on concurrent 
power of Federal and State Courts, 417-18. 

War, to be declared by Congress, 43, 167; 
to be carried on by United States, not by 
any one State, 167, 210, 212. 

Washington, George, in French and Indian 
War, 14* commander-in-chief of Conti- 
nental armies, 21, 27 note, 28, 29, 129; on 
excellence of Articles of Confederation, 
46, 46 note ; head of Virginia delegation 
to Federal Convention, 147 ; president, 
Federal Convention, 148-9; on aim of Fed- 
eral Convention, 161 ; first president, 167, 
312, 322; refused third term as president, 
195 ; urged establishment of prize court by 
Congress, 216-18; urged adoption of Con- 
stitution, 311, 313; on general view in Fed- 
eral Convention respecting a bill of rights, 
329; on difficulties overcome in forming 
union under Constitution, 332. 

Washington, Mr. Justice, case of The Active, 
222 note. 



Wearge, Sir Clement, on legislative power 
in English colonies, 95, 96. 

Weights and measures, standard of, fixed by 
Congress, 43, 168. 

Wells, John, member, Massachusetts-New 
Hampshire boundary commission, 118 note. 

Wentworth, Governor, grants of, under seal 
of New Hampshire, 238. 

West Jersey. See New Jersey. 

West, Richard, on English common law in 
relation to colonies, 97. 

Whipple, William, member of court, Penn- 
sylvania V. Connecticut, 232, 233. 

White, Chief Justice, on suit of a citizen 
against a State, 102, 125-6; opinion of, in- 
volving distinction between political and 
judicial questions, 390-3. 

White County Commissioners v. Gwin, 399- 
400. 

Whole, Committee of the. See Committee 
of the Whole. 

William III, New York-Connecticut agree- 
ment of 1683, confirmed by, 114. 

Williams v. Suffolk Insurance Company, 
378-9, 379 note, 382. 

Williams, Roger, testimony of, case of 
Holden and Green, 102, 105, 106. 

Williamson, Hugh, favored compromise. Sen- 
ate suffrage controversy, 184; views of, 
respecting provision for settling disputes 
between States, 269. 

Wilson, Ex parte, 444. 

Wilson, James, nominated William Temple 
Franklin for secretary, Federal Conven- 
tion, 149; on representation of New 
Hampshire at Federal Convention, 175 ; 
views of, respecting question of grant of 
power to Congress to negative State legis- 
lation, 178 note, 179 note, 180, 200-1; op- 
posed to equality of suffrage in Senate, 
182; in favor of a check upon legislative 
department, 201 ; agent, case of Pennsyl- 
vania V. Connecticut, 232 ; opposed to 
limitation of judicial power of United 
States, 252 ; favored establishment of in- 
ferior tribunals by national legislature, 
253; motion of, leaving appointment of 
judges to the executive branch, 258; mem- 
ber. Committee of Detail, 260; prepared, 
enlarged and revised draft of Constitution, 
261 ; recommended judicial method for set- 
tling disputes between States, 270; Justice, 
Circuit Court for District of Pennsylvania, 
350; opinion of, respecting unconstitution- 
ality of an act of Congress, 365; proposed 
investing judiciary with political functions, 
418; on extent of judicial power of United 
States, 418, 447. 



605 



Winthrop v. Lechmere, 96, 97, lOl, 119-21, 
348. 

Winthrop, John, and two houses of repre- 
sentatives in Massachusetts, 83. 

Wisconsin v. Pelican Insurance Company, 
431. 

Wood, Vice-Chancellor Page, on status of 
United States suing in English court, 
462-3. 

Wythe, George, declined position as judge in 
Court of Appeals in Cases of Capture, 
223; member of court, Massachusetts-New 
York boundary dispute, 235 ; declared act 
of Virginia legislature unconstitutional, 
363. 

Yates, Mr. Justice, on by-laws of a corpora- 
tion inconsistent with charter, 347. 



Yates, Robert, on Pinckney plan of federal 
government, 163, 251 ; member, compro- 
mise committee. Senate suffrage contro- 
versy, 185 ; on jurisdiction of national 
judiciary, 254-5. 

Yick Wo V. Hopkins, 140. 

York, James Duke of, grant of Charles TI to, 
116, 117, 122, 123; Penn's purchase of quit 
claim to Delaware from, 122 ; claim of, 
to Crown of England, 344, 348. 

Yorke, Sir Philip, on legislative power in 
English colonies, 95-6; appeared for Win- 
throp, case Lechmere v. Winthrop, 120, 
348 ; opinion of, case Penn v. Lord Balti- 
more, 124; considered boundary dispute in- 
volving a contract between the parties ap- 
propriate for exercise of judicial power, 
387. 



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